![Sample our Social Sciences journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/110822/TOC-Subject-Sample-2021-Social-Sciences.jpg"})
ABSTRACT
This paper argues that interspecies justice is integral to rising decolonizing nationalist ‘reconciliation’ efforts in Canada and that such an interspecies perspective on reconciliation carries a significant promise for developing a new legal subjectivity for animals in settler colonial law to change the conditions of the lives of animals materially. I demonstrate that the personhood ascribed to animals in numerous Indigenous legal orders in Canada, as well as underlying non-anthropocentric worldviews where animals are not considered inferior to humans but are to be regarded as kin, should stimulate a new legal conversation in Canadian law about who/what animals are and the legal subjectivity and regard they merit among all those committed to reconciliation. Indigenous legal orders offer animal advocates a new and potentially transformative legal argument as to why the continued legal classification of animals as a property in Canadian law is exploitative and incompatible with a dominant legal order seeking to foster genuine reconciliation. Notwithstanding the residual anthropocentric elements of Indigenous worldviews promoting ‘respectful’ or ‘reciprocal’ relations with animals, and how such elements might be co-opted by settler society, this new reconciliation-originating animal-friendly argument has the potential, if adopted, to alter the material conditions of lives of many animals, most notably in intensive agriculture.
Acknowledgements
The author is grateful to John Borrows for reading an earlier version of this Article.
Disclosure Statement
No potential conflict of interest was reported by the author.
Notes on contributor
Maneesha Deckha is Professor and Lansdowne Chair in Law at the University of Victoria. Her research interests include critical animal studies, animal law and legalities, postcolonial feminist theory, and reproductive law. She is the recipient of multiple grants from the Social Sciences and Humanities Research Council of Canada and other funding bodies. She has also held the Fulbright Visiting Chair in Law and Society at New York University. Her book project on feminism, postcolonialism and critical animal law entitled Animals as Legal Beings is forthcoming from the University of Toronto Press. She serves as the Director of the Animal Studies Research Initiative at the University of Victoria and is a Brooks Animal Studies Academic Network Fellow.
Notes
1 There is debate in Canadian Indigenous law circles as to whether and how Indigenous peoples should engage with Canadian governments. Those who are wary of any engagement as an opportunity for co-option, depoliticization, and continued colonialism (known as “resurgence” theorists) would be pessimistic about commitments to reconcile with Indigenous nations. “Reconciliation” theorists, by definition, are more hopeful that genuine decolonizing interventions will occur and be sustained. Some theorists are seeking to challenge the now-entrenched perspective that resurgence and reconciliation projects are necessarily at theoretical and practical odds. Asch, Borrows, and Tully (Citation2018).
2 I am aware of the grave drawbacks of linguistically separating “animals” from “humans” to categorize all nonhumans. I use the term, despite its epistemic violence, due to convenience and the inability to create a better term that avoids this linguistic violence. For more on what is at stake when we lump every living entity besides humans into the term nonhuman, see Worsham (Citation2013).
3 I leave aside the important question of whether this recognition should, in fact, be personhood as commonly understood in Canadian law and presently applicable to humans, corporations, and ships. Personhood is a liberal humanist concept and is not necessarily animal-friendly; an alternative subjectivity could be devised to better respond to animals’ embodied and relational vulnerabilities (Deckha Citation2018a).
4 It is important to note that residential schools were just one element of the overall history of settler colonial administrative efforts to eradicate and domesticate Indigenous peoples and their cultures in Canada. See Anker (Citation2016: 19–20).
5 See, for example, the work of HealthCareCAN, a national health law policy consortium and umbrella organization (Citation2011).
6 Call to Action 45 (iv) states: “Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal peoples are full partners in Confederation, including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements.” And Call to Action 50 states: “In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.” (TRC Citation2015a: 4-6).
7 Call to Action 27 states: “We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.” (TRC Citation2015a: 3).
8 Discussing Calls to Action 27 and 28 specifically. Call to Action 28 repeats Call to Action 27 but directs its Call to law schools “to require all law students to take a course” in topics listed in Article 27 (TRC Citation2015a: 3).
9 For a detailed referencing of legal scholars and actors in Canada calling for this understanding see Napoleon and Friedland (Citation2016: 727, 733).
10 For discussions of non-human personhood in Indigenous societies outside of Canada see Guido Sprenger (Citation2018) and Hendrik Schoukens (Citation2018).
11 For an interpretation of Dene views about personhood for animals see Glen Coulthard (Citation2014), cited by Jobb Dixon Arnold (Citation2018: 23).
12 As part of their groundbreaking work housed in the Indigenous Law Research Unit at the University of Victoria, Napoleon and Friedland have innovated a methodology for deducing legal principles from narratives where “(they) approach stories as jurisprudence.” (Friedland Citation2016: 87). See also Hadley Friedland and Val Napoleon (Citation2015).
13 As examples see Borrows (Citation2018: 49-50), Starblanket and Stark (Citation2018: 176), Regan (Citation2018: 210), and Turner and Spalding (Citation2018: 266). See also earlier work by Nancy Turner (Citation2008), and Vine Deloria (Citation1997). The volume also discussed these values in relation to resurgence and attempts a rapprochement between reconciliation and resurgence theorists as its title suggests. For more on the difference between reconciliation and resurgence as modalities of (non)engagement with the Canadian state, see Starblanket and Stark (Citation2018: 175).
14 See Napoleon and Friedland (Citation2016: 725) calling for Indigenous theorization to now consider pragmatics.
15 The jurisprudence in Canada is replete with statements that associate First Nations, Métis and Inuit peoples in Canada with traditional practices directed at the hunting and killing of animals. A recent prominent example occurs in Clyde River (Hamlet) v. Petroleum Geo-Services Inc. (Citation2017), a case involving the impact of treaty rights to hunt marine mammals, where the Supreme Court of Canada stated: “Most residents of Clyde River are Inuit, who rely on marine mammals for food and for their economic, cultural, and spiritual well-being. They have harvested marine mammals for generations. The bowhead whale, the narwhal, the ringed, bearded, and harp seals, and the polar bear are of particular importance to them. Under the Nunavut Land Claims Agreement (1993), the Inuit of Clyde River ceded all Aboriginal claims, rights, title, and interests in the Nunavut Settlement Area, including Clyde River, in exchange for defined treaty rights, including the right to harvest marine mammals.” (Clyde River Citation2017: para. 2) per Karakatsanis and Brown JJ. It is illuminating to note that the elements of hunting practices that the Canadian state has recognized are selective. Canada has recognized only the last step in many Indigenous hunting protocols – the right to kill – without ascribing constitutional value to the procedural steps of showing respect to animals that will be killed that precedes their end. If we trace this recognition to its colonial roots, we can observe that it is only the hunting of animals that settlers could “see” as a valid or acceptable use of land. We can read this selective and very partial recognition of how humans should interact with animals as a strong example of the sublimation of Indigenous laws surrounding what is perceived as respectful and reciprocal relations with animals and land to conform with colonial sensibilities of land as an obect to possess and animals as killable. For more on the history and harms of Indigenous laws being made to comport to colonial mindsets and visions, see Senwung Luk, “The Law of the Land: A New Jurisprudence on Aboriginal Title” (Citation2014) Supreme Court Law Review 67 S.C.L.R. 290 at 307-308. I thank an anonymous reviewer for bringing this point and source to my attention.
16 All human cultures and societies engage in storytelling and mythologies regarding other-than-humans or otherwise that we can recognize as constitutive of legal relations and laws. It is not my intention to single out Indigenous cultures in this regard. For example, Yamini Narayanan discusses this myth-making in the context of highly gendered Hindu nationalist narratives in India regarding cows as a metonym for the nation arguing that “(t)he celebration in Hinduism of the lactating cow as a freely giving, sacrificing mother to her human children epitomizes this relationship of manufactured consent.” Narayanan (Citation2019) at 201 (emphasis added).
17 The rising phenomenon of Mãori agri-business in Aotearoa New Zealand is a prominent example where claims about the harmony that can exist between animal agri-business and Indigenous traditional ways of knowing and being are made. See the corporate descriptions of the Miraka company in New Zealand, a Mãori -owned dairy company, that promotes its integration of Mãori cultural values into dairying (Miraka Citation2015). For other similar claims, see “Bringing a Mãori perspective to the dairy industry” (Citation2017). For scholars who contest subsistence-only animal-use models as too restrictive and adverse to Indigenous rights in settler colonial contexts see P. Ali Memon and Nicholas A. Kirk (Citation2011). For a Mãori-authored defense of veganism that is suggestive of a contrary view, see Kirsty Dunn (Citation2019).
18 Non-Indigenous scholars have also articulated this critique. See Lisa Kemmerer (Citation2004).