I’ve struggled with the concept of a right or rights in a legal context. I think because historically Indigenous people have been granted rights by the colonizing state. As if we have no agency or sovereignty pre-existing before Europeans arrived.
In law school we had an Anishnaabe Professor, John Borrows who said rights were both what one is entitled to but also responsibility for, so it’s a relationship of reciprocity. Even though this idea seemed more familiar, there was still this unresolved internal discomfort over the idea of rights. As it did not answer the question of ‘but where do they come from?’.
The Canadian Constitution recognizes existing rights for Indigenous people – basically what Canada chooses to recognize. Note that it does not say pre-existing. The Canadian Courts have said there are ‘inherent rights’ held by Indigenous people to land, culture, way of life that pre-exist prior to settler colonialism but still limit how these are interpreted.
Even with the adoption of UNDRIP ‘free, prior, informed consent’ assumes a colonial state’s systems are at heart and an Indigenous group is responding to a proposal or approach and not neccessarily defining their own relationship to land, and starting from that basis. It is still a limited notion of sovereignty.
There are examples of Indigenous Nations asserting sovereignty on their own terms. They claim and live sovereignty over their own lives. We see the tension in the Wet’suwet’en territory as Canada tries to assert it’s power.
Whereas we have gone on the path of agreeing with Canada on terms of our relationship through the land claim mechanism. So much of it is ‘granted’ rights, and under Canadian laws and systems. Which limits assertion of sovereignty over our own lives. Because someone else is still defining what our land is for i.e. it’s for exploiting, and how to live our lives around the economy that is defined for us. When Inuit are a hunting society.
All our laws and systems, our language revolve around a hunting way of life. How then do we express ‘rights’ in this context, where we claim sovereignty over our own lives according to our worldview? Without getting stuck in how we have been cornered in how to think about it?
I think of it as a psychological process of claiming space(s). This is our land, we have a right to define our lives, relationships, recover from colonialism and make livelihoods. Once we get to this psychological space of claiming space, it is a lot easier to think about rights on our terms. It lives within us!
Imagine the possibilities once you claim your own space in your head?!