Home Research Projects What is a Crime? Publications Pimatsiwin Weyasowewina: Aboriginal Harvesting Practices Considered PART I: INTRODUCING THE RESEARCH STUDY

Research Projects

What is a Crime?

Publications

Part I: Introducing the Research Study

A. Introduction

A non-status Aboriginal individual ventures out onto unoccupied lands in northern Alberta in order to secure food for his family. Successful in the hunt, he returns with a bull moose that he and his wife distribute amongst thirty-five immediate and extended family members. Subsequently, the man is charged by Fish and Wildlife officials under the provincial Wildlife Act for hunting without a license. He loses his vehicle, his guns and the meat that has already been preserved for the family’s use.

A middle-aged Métis woman assists her friend to set a net in the lake beside which the two have lived for their entire lives. Provincial authorities arrive at the woman’s residence at 6 o’clock the following morning, unannounced, and question her about the net and the fish that may have been caught. Concurrently, other officers are questioning the friend, who is a Treaty Indian, about his relationship with the woman.

These are two examples of countless similar incidents that Aboriginal persons experience on a regular basis throughout northern Alberta [1]. The negative outcomes of these events are exacerbated by the fact that many Aboriginal persons, families and, indeed, whole communities of Aboriginal people in this country live under conditions of severe poverty. These poverty conditions have contributed to the numbers of persons “criminalized” while engaging in traditional hunting and gathering practices because poverty will often force Aboriginal people to rely heavily on the products of “criminal activity” such as unlicensed killing of big game animals like moose and deer. Nonetheless, despite situations where the stereotypical “poverty leads to crime” syndrome may be used as a rather superficial explanation for criminal behaviours, this reasoning cannot be applied easily, accurately or fairly to most cases of “criminal” activities as these activities are traditional Aboriginal harvesting and gathering activities in traditional Indigenous territories.

Across the northern parts of the western provinces where boreal forest conditions prevail, Aboriginal peoples continue their traditional practices of harvesting and gathering as the foundational expression of their social and cultural existence. These activities are the expressions of distinct ontologies and epistemologies just as deeply and certainly as they are the sources and means of Aboriginal peoples’ collective and individual physical and social existence and survival.

In many of these particular regions of the country, where the people continue to practice their traditional ways of life, extended families will rely, in some cases almost exclusively, on the capacity and abilities of key individuals in the family network to hunt, fish and trap as a means of subsistence. Further, this reliance of families and communities on the resources that accrue from hunting, fishing and gathering activities is connected integrally to social practices that encompass the trading, sharing and sometimes selling of particular resources. In this way, individuals with highly developed skills that are used to serve the peoples’ needs are greatly respected and honoured because they ensure the peoples’ survival.

Traditional harvesting and gathering activities and practices are viewed generally, even by those most ill-informed members of Canadian society, as representative of the social context of Aboriginal peoples in Canada, and more widely in North America. Notwithstanding this as a reality, such “behaviour” often attracts the excessive attention of law enforcement representatives. This excessive, and usually negative, focus by authorities on socially- and culturally-motivated activities is reasonably interpreted by many Aboriginal people as abuse of state power.

Although many Aboriginal people continue to deal with the issues that surround the criminalization of their traditional harvesting activities, there remains a very great lack of public and professional understanding and practically no knowledge base on which to construct a fair and just legal or even social consideration of these issues. There is little public awareness, for example, that the criminalization of “traditional” Aboriginal land use activities was a consequence of unilateral changes to both the common law and legislation since the Confederation of Canada. There is even less consideration or awareness that one of the most serious outcomes of this criminalization of subsistence practices was an unwavering and ruthless process of criminalization against the mindsets or psyches of generations of Aboriginal peoples.

One of the first things I learned was how to hide a deer so the Fish and Wildlife wouldn’t find it. I remember watching the blood dripping down on the snow as my uncle stood and talked casually to the Fish and Wildlife officer who had stopped us on the bush road. Lying didn’t seem wrong then. But what else did that experience teach me? What were the long-term impacts of those experiences? Will I ever know?

The refrain throughout the community sessions of this project described how the younger generations of Aboriginal peoples had grown up learning to distrust and lie to fish and wildlife authorities, watching and helping their parents and grandparents hide the meat and fish that meant the survival of their families. Not one of the research participants believed that such actions were “criminal”, but neither did any one of them deny the negative impact of such experiences in their lives.

While the historical and legal records of Canada clearly reveal that the spiritual practices of the Aboriginal peoples were prohibited and criminalized through government legislation, the connections between these legal actions and policies of the state and the physical, intellectual and psychological development, well-being or survival of Aboriginal peoples has rarely if ever been fully analysed. Even less has there been an awareness that traditional harvesting and gathering practices are deeply involved with the spirituality of Aboriginal peoples. Thus the criminalizing of hunting and gathering activities and the criminalizing of spiritual practices are in many ways like different expressions of the same relationship. The latter as a 19^th century expression of the relationships, the former a 20^th century expression that carries into the 21^st century.

Generally, when individual or group behaviour is “criminalized” through the laws of a society, the members of that society are confident that such categorization is preceded by considerable and careful analysis of the social context of the behaviour. In Canada, this confidence is based on the belief and broad understanding that the ethos of democracy guarantees society members the right to full participation in processes of their own government, including law making. Therefore, since the careful analysis of proposed laws for a society involves and indeed, by design, depends upon the participation of members of that society, the confidence of those society members in the “fairness” and “justice” of their own laws becomes closely associated with notions of personal patriotism and nationalism. To question the fairness of a law becomes tantamount to questioning the ability of the individual self and his or her society as a whole to build or support a democratic society. In Canada, to question the nation’s “democracy” is heresy.

Where the governing body of a society purports to support democratic participation in lawmaking but in fact co-opts individual thought to support state laws and policies, the creation and maintenance of a public membership that is uninformed or ignorant is a primary prerequisite. A public that chooses avoidance or denial as a response to its own societal issues reflects an ignorant, uninformed and therefore essentially powerless public. This in turn provides the context for a particular form of ”democracy", one that engenders a powerful state structure that in fact rules the people under the general guise and claims of the ideal “democracy”. The people are essentially governed through their own ignorance with minimal or misinformation, suggestions, innuendos, promises, and flattery. Today, with almost unlimited access to information and multiple local, national and international perspectives, the children continue to ask about the emperor’s clothes, but the adults are afraid to answer for fear that they too will stand naked.

This is the social context that helped to determine and shape the historical relationships between Canadians and Aboriginal peoples. The laws that criminalized the beliefs and activities of Aboriginal peoples came from “settler” people who had no clear understanding and no accurate information about the peoples who inhabited the lands that they were ‘given’ when they immigrated to Canada. Basic information about European laws that recognized and guaranteed the rights of the Aboriginal peoples the settlers were legally supplanting was denied them in the same way that it was denied to the Aboriginal peoples themselves. Laws were passed by their own “settler” governments without any consideration of legal or social impacts on the Indigenous peoples of North America. Because these were laws of a democracy, and based on the very nature of a democracy, the peoples of that democracy have been forever implicated by every aspect, outcome and impact of those laws. This recognizes the unstated imperative for each individual of a democratic society to accept personal responsibility to be informed about the laws and the policies that are implemented on his or her behalf.

The intent of this project is to contribute to public information and awareness in relation to specific impacts of the criminalization of traditional harvesting practices of Aboriginal peoples in Northern Alberta. The issues that confront contemporary Aboriginal societies are complex but cannot be resolved in isolation from Canadian laws and therefore, from Canadian individuals or Canadian society.

In relation to the history of the criminalization of Aboriginal “behaviours” in Canada or Alberta, society’s confidence that its laws and policies have been weighted for negative impacts on its own membership would seem groundless. Community participants in this project pointed out that Canadian society in general accepts that Indigenous populations on “Canadian” lands exist somewhere outside of and are denied the same respectful, ethical and legal considerations such as are granted to its “other” memberships prior to the enactment of legislation/laws that criminalize their “behaviours”. For many and complex reasons, including linguistic and accessibility issues, most Aboriginal peoples have been and continue to be excluded from the processes of law making in Canada. In other words, the democratic approach doesn’t work in this context. In fact, the ongoing enactment of legislation that threatens Aboriginal peoples’ survival continues without their full participation. They remain objects of the legislation and are not perceived as cultural beings within distinct societies.

The ethical and legal responsibilities of law-makers to engage Aboriginal peoples in culturally appropriate situations of dialogue about the impact of proposed legislation is usually ignored. The reasons cited most often for not addressing the “cultural appropriateness” issue are cost and time. However, cost and time are the persistent considerations for addressing any issue. The resistance of the law-makers to considering “cultural propriety” as a factor in effective dialogue between Canadian “officials” and Aboriginal people rests, it seems, on prioritization. “Officials” tend not to see a need to give priority to anything described or connected with “culture”. This attitude or approach suggests that officials or law-makers are somehow positioning themselves outside of any “cultural” aspects of Canadian society or they are denying that Canadians live as “cultural” beings. This reluctance to deal with the cultural aspects of societal issues suggests that there is a way to be a society or an individual without a culture – to be “a-cultural”. It suggests human interactions without cultures. Or, it grants one group of people an unstated cultural privilege of superiority and takes away from another group of people the basic right to live out their culture.

The language used in this subterfuge is that both parties to the dialogue will simply recognize that each of them must respond to the other and to the situation with “objectivity”. Unfortunately, in this dyad, “objectivity” is a trait usually reserved for and attributed to the “white officials” while “subjectivity” is the “cultural” trait ascribed to Aboriginal people. This “subjectivity” is also usually interpreted as “biased” and a deficiency in intellectual reasoning capacity. The possibility that the “objectivity” of officials is equally culturally “biased” does not enter into the process for issue resolution.

The difficulties then of establishing productive dialogue between law-makers and law-enforcers and Aboriginal peoples are extremely complex and subtle. Any attempts to establish positive relationships between government representatives and Aboriginal peoples are dependent upon the open recognition and effective address of the cultural and linguistic bases of most communication issues.

In Canada, these types of “cross-cultural” communication issues are addressed by policies and resources in various ways. In the areas of “language and culture preservation” or “heritage” and “recreation”, financial resources are usually available in small to large amounts from the different levels of government. In the context of Aboriginal traditional harvesting, laws and policies, however, where land usage, resource access, environment and Aboriginal rights are all aspects of the dialogue, there have been few resources allocated directly towards clarifying the multiple, complex “cultural “ considerations that are embedded within these interactions. Expenditures that support communication and appropriate two-way knowledge transfer processes would result in more accurate and explicit exchanges with deeper mutual understanding. These results would offer benefits to every citizen, but for the Aboriginal peoples whose societies are rarely depicted in any negotiation or record with accuracy, it could mean the first time that their words are actually “heard”. This is especially true for those Aboriginal people who are living the traditional ways and who are not usually on the front lines engaging with governments in the “negotiations” process.

Without a willingness to invite and meaningfully involve Aboriginal people in dialogues about those laws that impact on their lives and their living environments, Canadian and provincial law-making will continue to take place within a model and a process that creates and maintains a tension between Canadians and Aboriginal peoples. One outcome of this tension is a false dichotomy that places racialization at its core. On the streets, it says, “ If the Aboriginals benefit, then we lose”. “We” is almost always “white”. If this perception is to change, accurate information must be available to the officials as well as to every other person in the Canadian public.

With the wide range of available media by means of which the Canadian public can be informed, it is likely not inflammatory to suggest that the public longevity of such a racialized perception must in the end imply some form of permission and promotion from influential members or representatives of that public. In other words, if the perception continues, it does so because it is “allowed” to continue. Those who have authority over law-making and therefore over Aboriginal and other lives also have authority over the resources that can help or hinder public awareness and knowledge. They can help to build or break communications and relationships between Aboriginal peoples and other Canadians. For the authorities to keep silent and not engage in improving relationships through information and opportunities for dialogue is to promote this dichotomy where the right for an Aboriginal person to catch a fish or kill a moose is interpreted as a threat to another person’s well-being. Ultimately, this positioning places Aboriginal people by default on one side of a divide that they have never advocated nor would ever advocate – Aboriginal people against non-Aboriginal people.

One part of the community discussions and interviews of this project revealed that Aboriginal people have been portrayed and accused by non-Aboriginal people as taking benefits that belong to other Canadians in order simply to satisfy their greed and sense of possession. Ongoing personal experiences of Aboriginal harvesters continue to validate this claim. In the contemporary scene of Aboriginal harvesting, formally negotiated provincial agreements that permit certain groups of Metis people to hunt legally for subsistence purposes are being re-interpreted at the ‘street’ level into daily interactions of racial hostility. In addition, and perhaps fueling this type of interaction, the Fish and Game associations and the Alberta Outfitters Society have lodged formal petitions and objections against this agreement and political position in Alberta.

In addition, and as another part of the objection to Aboriginal traditional harvesting practices and rights, Aboriginal people are portrayed as being anti-Canadian because they do not wish to “submit” to Canadian laws. Two contradictory implications surface with this commonplace objection: firstly, that as Canadians, Aboriginal peoples ought to accept the laws that “they” have helped to make, and secondly, that Aboriginal peoples have been “conquered” and are not Canadians and therefore have no contribution to make to Canadian laws. This implication is usually extended to point out that they (Aboriginal people) need not necessarily benefit from Canadian laws and resources since they have everything “given” to them anyhow.

This perversity that is being attributed to the Aboriginal people or Metis who are now exercising their rights to hunt without a “license” and “out of season” is in fact observable in the officials who are permitting such ill-informed opinions to be expressed in public and to go unchallenged and unaddressed. These officials are after all those who are recognized formally to be in positions of power and knowledge. By their silence, they acquiesce and that interpretation is often acted upon by more public remarks signifying even deeper prejudice and resentment by these Canadians who have aligned themselves against Aboriginal people.

The significance and functions of the laws, as well as of the law-makers and the law enforcers, in relation to traditional Aboriginal harvesting practices are becoming more obvious to more people in the present tensions between Aboriginal and non-Aboriginal people over the right to practice these traditions. Although much of the tension is based on lack of information and/or misinformation, there are no efforts being made by those in authority, those who helped to create the historical stage for this scene, to address this need for open communication and dialogue between the two groups. Where tensions like these are permitted to escalate into racialized struggles that are fuelled on the Aboriginal side by years of resentment and anger over past abuses and on the non-Aboriginal side by hatred and resentment based on beliefs of innate “white” superiority and the greedy “Indian” taking over the “white” resources, the people who are on the sidelines of this battle watch carefully to see what those in authority will do. What the officials and government leadership choose to do in addressing this tension tells every observer what these people believe, think and value: important questions for everyone’s future. The ordinary people in the battle lines have made their positions clear, but the rest wait to know where the authorities will stand.

It is after all a matter of strategy; in the Aboriginal world imprisoned within a larger society created to serve the interests of the state, we have all been here before. The innocents, those who believe in the power of the democracy, stand wide-eyed, waiting with the expectation that the authorities will show the “right” way out of the problem. They struggle to believe in justice and democracy while observing the unimpeded growth of a social situation with an inevitable end. The “white” guys can’t lose because they represent the non-Aboriginal side of Canada. In the context of the racialized tensions, the scenario must be staged to justify the “saving” of the many (Canadian) at the price of the interests of the few (Aboriginal). What are to be saved are resources and economic benefits.

The “greater good” argument will carry weight with the public trained in this familiar argument and overshadow the fact that this scenario is after all only a mirage of the real political and legal situation. There is no substantiated evidence anywhere to suggest that loss of resources for Canadians or Albertans will occur if Aboriginal people are “permitted” to engage in their traditional harvesting practices without criminalization and punishment. It is however an argument that feeds and keeps alive the existing tensions around “rights” in relation to Aboriginal peoples, tensions that exist primarily because most members of the non-Aboriginal public remain uninformed about the historical context and legal bases of Aboriginal rights. As long as this ignorance persists, a variety of social tensions between Aboriginal people and non-Aboriginal people will continue to fester with racialization as the core point of visible and “common” differentiation.

Since these tensions and hostilities that divide Canadians generally cannot be seen to offer benefits to any group, it remains a question then as to why the public is not being educated in such a crucial area of the nation’s history. Logically, the state as the responsible agent for public education would be expected to make accessible accurate information and knowledge about Aboriginal histories, cultures, rights and to directly promote this information as a way of addressing racialized tensions between its’ own citizens. Since it does not, the next point of consideration must be the reasons for this seeming neglect of state duty. While there are other perspectives from which to view the question, the one that seems to make the most sense is economics. Throughout the history of European colonization, the guiding principle underlying the establishment of relations with Indigenous peoples was consistently one of economics with economic benefits directed towards the colonizing nations and then later, with independence from the “mother country”, to the emerging “new” nation. The experiences of North American Aboriginal peoples have been no exception.

Applying this guiding principle to the question of why Canadians remain virtually ignorant of the histories, cultures and issues of the Aboriginal peoples whose lifestyles and practices preceded their own on these lands may connect to an analysis of the economic benefits that have likely accrued to the state from the laws and policies that have historically criminalized Aboriginal traditional harvesting and gathering practices. It is difficult to imagine that a nation like Canada, where the general populace is taught to value and espouse such democratic ideals as justice and freedom, will pursue its own state interests of economic advantage at the cost of the destruction of the ancient Indigenous peoples within its prescribed boundaries. At the same time, it is also betraying its own “settler” populations through a public education approach that ensures and perpetuates ignorance and dependence on state policies and state appointed authorities in any area of life that touches on those Indigenous peoples.

State-controlled public ignorance about Aboriginal peoples has almost guaranteed that the lives of the Aboriginal peoples will lie in the hands of the state. The maintenance of this type of control has been an ongoing state agenda in this country. The negotiations for which levels of government will assume responsibility for what aspect of “Indian” lives and for how much money, for example, continues to be a primary topic of concern at federal-provincial tables. As long as the Canadian public believes and accepts that it has no need to be informed about state decisions in regards to the lives and ways of Aboriginal peoples, and it is, at the same time, convinced that it has the right to give loud voice to its uninformed views on these same decisions, the struggles of Aboriginal peoples to live out their lives in their own traditional ways will be effectively neutralized as they strike against that shield of public ignorance behind which the state hides the bases for its Aboriginal laws, policies and practices.

There is a relatively well-known but disturbing history where federal and provincial laws affecting traditional harvesting and gathering by Aboriginal peoples in Alberta were enacted and enforced with no involvement from the Aboriginal peoples themselves. This research project reveals however, in a mirror fashion noted by Durkheim over 100 years ago, that the participation of the Aboriginal peoples themselves in the fulfillment of the laws was significant and necessary for the actual legitimization of the laws. Without the fulfillment, albeit enforced, of the Aboriginal person’s functions/roles as the “criminal” and the “punished”, the necessity of the laws for the well-being of the larger society would have been open to public challenge. Without the laws, the Aboriginal peoples would have continued to live their lives according to the ways of their own traditional societies. Their children would have learned in traditional ways and their cultures and communities would have remained strong, providing the collective vitality needed to support the men, women, and children that comprised them. The lands and resources would have been shared with the ‘newcomers’ under different systems of respect because all of the peoples would have come to the meeting table under different conditions and in different relations to each other, especially in regards to status and power. The question then remains: is there a way to measure or make observable to the non-acculturated eye of the non-Aboriginal, the weight and types of human impact that accrue to Aboriginal societies, families and individuals after years of legally sanctioned abuse permitted through the criminalization of Aboriginal traditional harvesting practices? This project is one small attempt to make that impact known through the words of the Aboriginal peoples themselves.

B. Background

This research project attempts to provide a more comprehensive knowledge base and therefore a deeper understanding of the harvesting practices of Aboriginal individuals, families and communities in northern Alberta. The work is carried out with the underlying premise that Aboriginal populations across the northern parts of each province share a history of similar experiences in relation to traditional harvesting and gathering practices in their traditional ‘home’ territories. According to the oral histories handed down through the generations, the Cree and Metis people in particular, along with their cousins the Ojibwa and the Saulteaux, have maintained continuous ties with each other through the centuries into the present. In support of these oral histories, ethnographers and anthropologists whose works focused on the lives of the Aboriginal peoples living in northern parts of “provincial” territories support the notion that Aboriginal groups traveled widely and shared their cultures, languages, and ways with each other across the land mass of Turtle Island.

Aboriginal people tend not to attach the same meaning as foreign or ‘settler’ societies to the geographical boundaries imposed by political decisions of national and provincial bodies elected by those same societies. Aboriginal peoples have different histories of personal and collective experiences in association with those boundaries. The “new” boundaries are known, however, and recognized in a formal sense by all Aboriginal people as part of the historical process of Canada that entailed a claim to ownership, including jurisdiction, over Aboriginal territory westward. The people who participated in this research project shared their personal and familial histories in ways that were bound to traditional harvesting and gathering territories. The rivers, lakes, creeks, hills, muskegs, meadows, ranges – all were described as inseparable from the lives of the persons themselves. The passion of relationship and spiritual connections with the land, its natural forms and the life these supported was the elemental force behind these narratives. Harvesting and gathering were not activities to be carried out with motions and prowess for purposes of physical survival. They were the sources of life, the expression of human being and spirit. For Aboriginal people, understanding this way of life and relationship makes it difficult to imagine the creation and reasons for unnatural boundaries just as surely as it is difficult to understand the existence and reason for unnatural laws to govern the lives and practices of human beings.

One objective of this work is to provide policy makers and enforcement officers as well as public officials and ordinary citizens with a stronger base of information in relation to traditional harvesting and gathering practices. Research participants spoke clearly and shared their stories openly to inform law-makers and other Canadians about their views and experiences in this area. The hope is that this information base will lead to higher levels of understanding of the overall circumstances surrounding Aboriginal peoples’ harvesting of wildlife, fish and plants as means of subsistence. This enhanced understanding and knowledge will carry with it the potential to positively affect future definitions and legal responses to these traditional Aboriginal practices.

This work is premised on the position that formal consideration of hunting, trapping and gathering behaviours, especially in relation to Aboriginal peoples, must be viewed from a perspective outside the realm of criminal law. While criminal law is often used as a default means of securing social control, it is only one available strategy. Alternate methods may include co-management arrangements, mediation, formal or informal agreement, self-regulation and codes of conduct, and education and awareness. Each of these formal responses to traditional Aboriginal “behaviours” has distinct personal, social and legal consequences.

Given the broad range of options available for state management and “social control” of Aboriginal behaviours, especially with respect to traditional harvesting practices, this project addresses the question: was/is it necessary that these particular “behaviours” be criminalized? Further, since these traditional behaviours were criminalized for some Aboriginal people, is there any way of determining the legal, social and cultural factors that influenced the decision to criminalize or not criminalize specific behaviours for specific Aboriginal peoples? The final question bears significance both historically and contemporaneously: what are some of the personal and social consequences of the criminalization of these certain behaviours? In all aspects of this project, the gravity of Aboriginal responses to these questions was obvious, consistent and predictable. The intention of this work is to broaden the knowledge base and increase public understanding about the issues that continue to surround and underlay these questions. An appropriate process to invite responses from those directly impacted by these questions is at least as important as the answers themselves. The framing of those responses and the responses themselves are crucial to several generations of Aboriginal peoples in the past, present and the future. Nor can it be denied that the answers implicate all Canadians.

In order to ensure validity and credibility for the substance of this work, following recommended qualitative research procedures, the research project invited the participation of people most directly impacted by such criminalization. Research participants were asked to speak to the issues by sharing their experiences as Aboriginal people who have lived and continue to live in ways that rely on traditional forms of harvesting and gathering, even where such activities have been historically considered illegal and their practice left them open to criminal charges and severe penalties under state laws.

Pimatsiwin Weyasowewina considers the harvesting and usage of wildlife and other natural resources by Aboriginal peoples for subsistence and related cultural purposes and the legal categorization of criminality that has tended to accompany these practices and activities. Traditional Aboriginal harvesting practices are often portrayed through public education and popular media as primitive and outdated or as exotic and frivolous. In either case, their significance in contemporary society is often not understood, whether that society is Aboriginal or not. An unfortunate consequence of this is the development of ignorant and/or ill-informed attitudes in mainstream society about Aboriginal peoples, their beliefs, customs, values and traditional practices.

Many Aboriginal persons, families and communities rely on hunting, fishing and/or trapping as an important means of subsistence. In addition to subsistence, people hunt, fish and gather for reasons that relate to their own and their children’s psychological and spiritual well-being and to the long-term vitality of the cultural group to which they belong. This well-being is guaranteed through the intergenerational transmission of values, customs and traditions that evolved from and are embedded within these traditional practices.

In most instances, these practices and values related to traditional harvesting are maintained in both rural and urban settings. Research on migration patterns and movements of urban Aboriginal peoples points out that connections with the home territories are often maintained by Aboriginal peoples for purposes of cultural identity [2]. The fact that this cultural identity is connected to hunting and gathering practices in the home territory and to the related “illegal” transportation of the natural “products” of this harvesting into the urban setting for sustenance purposes is not mentioned in the research noted.

In the context of the law, traditional Aboriginal harvesting practices are often “criminalized” through the enactment of federal and provincial laws and the implementation of federal and provincial policy. Despite the intention of these rules and laws to prohibit or prevent traditional harvesting practices, Aboriginal people continue to hunt fish and gather for physical as well as cultural survival reasons. Their basic need to live and be human according to the ways in which they have ancestrally known themselves to be human is reflected in the manner of response that they have made to the legal processes and practices that lead them continuously into criminality. Aboriginal peoples, as individuals and as groups, continue to practice their traditions, holding to their values and customs despite provincial and federal rules and laws that criminalize directly and indirectly both them and their practices.

A prevalent view within Aboriginal communities is that law enforcement techniques are tantamount to abuse of power and authority. Because these views are substantiated by personal experiences, interactions between law enforcement officials and Aboriginal peoples are tenuous at best and often hostile and openly antagonistic at worst. In many Aboriginal communities, the potential for developing any sense of mutual understanding is negligible. Unfortunately, this lack of understanding between the two parties has a negative and lasting impact on the quality of life of the Aboriginal peoples involved, particularly because of the power relations in effect in this situation. Where power resides with the one who holds the breadbasket, or in this case, the moose license, the one who is hungry offends at grave personal risk. To live in fear that personal and communal traditional ways of living and being are endangered places the whole people in severe mental, physical and emotional distress. This is the place assigned to Aboriginal peoples as individuals and as collectives by existing provincial and federal laws and policies that govern their harvesting and gathering practices.

The cumulative effect of these situations in the long term is the broad criminalization of Aboriginal cultures and peoples. This criminalization is evident not only from a legal perspective and in the courts, but is also observable in the attitudes and related actions of law enforcement officials. Further, and perhaps of more serious note, is the damage that such criminalization is likely to cause in the lives of the Aboriginal peoples themselves. From this perspective, legal and attitudinal positioning has represented, and continues to represent, huge barriers to the survival and well-being of Aboriginal societies.

The long-term personal, cultural and social impact of this criminalization has never been fully and impartially investigated. The personal narratives collected during this work are a beginning and described a negative impact clearly and repeatedly, from every region. The following section exemplifies the many similar stories that described the negative aspects of the criminalization process brought to bear on Aboriginal people in northern Alberta. No comment has been taken out of its context. The speaker is referring to the negative attitudes and actions of the law-enforcement officials and referring to one experience that took place over a period of time.

You know they have a job to do but I think they could do it in such a way that they don’t make you feel like such a criminal. When we got charged, they came in at seven o’clock in the morning. It was still dark in October. Why couldn’t they have come at a decent hour when we were up? There must have been seven Fish and Wildlife vehicles out there. We had trespassing signs on our property – we had them there for a reason – because we couldn’t drive over the water lines. They ignored everything. They barged in and went straight to my bedroom. I don’t have a habit of keeping fish in my bedroom. That’s what I mean about the way they do things. They could have done the same thing in a different way.

When we went to court, we had no lawyer. We were refused Legal Aid and we couldn’t afford our own lawyer. The way that was set up with the undercover cop – he still has my net – he came and borrowed from me so he could fish in the river – he befriended the family and the community – he just lived there and he’s the one who supplied the transportation, he supplied the ammunition, he supplied the guns and the young people with dope and we tried to get them to admit that this is entrapment. They said, ‘He’s not the one who is being charged, it is you guys... There was not a whole lot we could do – even a lawyer can’t do anything.

I didn’t fish and I didn’t sell fish. I accepted money for someone else who had arranged to give the undercover cop some fish. The way the undercover cop talked, we were outlaws, we were thieves.

Like he said in court, the people he stayed with didn’t have to go fish to make a living because they had a coloured TV. Now what does that have to do with food in your cupboard?

When we went to court, I was fined two thousand dollars. They also said, “Even though you are a Treaty Indian, you have to report when you pick up your license for certain lakes, you have to report 24 hours before you set the net, where you set the net, what lake you set it in, and you have to report in 24 hours after you lift the net exactly how many fish you caught’. (Individual B)

One thing I don’t like, I am a Bill C-31 now, and I used to be Métis. Now I can’t even give this old man some fish or moose meat or I will get charged. How do the old people survive? That’s how we survived. Young people went and hunted and fed the old people. That’s how we survived. Now I am told I can’t give you a chunk of moose meat.

We were told, ‘You’re a Treaty. If you need help to get your moose out of the bush, you have to pay these people (Métis) in cash. But that has always been our way of life, you know, to share our meat’.

My grandfather was sick. He can’t hunt so I give him moose meat and fish because that is the only way and that’s how the old people survive. I set a net and I drive around and give them fish. I still do that. I was taught that by the elders. I spent a lot of time with my grandfather. (Individual C)

These narratives provide a fairly clear social and cultural backdrop for the rest of this paper. Like most of the contributions from the community gatherings and interviews, these support the view that law- and policy-makers commonly display a general lack of understanding and appropriate respect for traditional Aboriginal harvesting practices. This may be based in part on the fact that these people often have minimal or no information to offset or bring balance to their perspectives. It is difficult to develop understanding or respect if there is no basic information or knowledge base on which to build such understanding. Unfortunately, the question of who is responsible for the lack of information or knowledge on the parts of law- and policy-makers remains unaddressed and the significance of the question itself tends to be regarded as superfluous to the more important tasks of law and policy-making for the unidentified general “public”.

At the same time, and probably of more significance, is the fact that Aboriginal people and communities have generally lacked opportunities to interact with officials and policy makers in ways that can best fulfill federal and provincial governments’ obligations to protect the resources that have sustained Aboriginal peoples for centuries. State systems of conservation and protection are relatively recent in comparison to the many ancient Aboriginal forms of sustainability and resource protection that are usually not considered in law and policy development processes. A primary goal of this research is, therefore, to contribute to a better understanding of many of the issues that are related to the criminality of Aboriginal harvesting practices through the voices of the harvesters themselves. The intention is also to propose solutions that lie outside the context and formal structures of criminal law. To continue using a foundation of criminal law and its enforcement to manage those natural resources that have traditionally been the life source of Aboriginal societies is to purposefully structure the demise of these ancient cultures.

Fish and Wildlife laws are assimilation policies. The aim is to have Aboriginal peoples live as the “other” Canadians. Canadian laws so we can’t practice our traditions. Whose values do the laws reflect? (Individual D)

C. Description and Methodology

Consistent with the Law Commission of Canada, through its “What is a Crime?” project, the following questions directed the research plan for this work:

• Under what conditions and why are traditional Aboriginal harvesting practices defined as “unwanted” or criminal?
• What response mechanisms have been used or are being considered in Canada to deal with situations where Aboriginal harvesting practices and activities have been defined or identified as “unwanted” or criminal behavior?
• What has been the impact of intervention strategies identified and discussed in this research? On Aboriginal people and communities? On law enforcement agencies? On government?
• Are there or could there have been other response strategies employed to deal with the “unwanted” behavior?

Responses to these questions have not been presented in a sequential and linear fashion. To honour the voices of the Aboriginal community participants, and to better reflect an Aboriginal perspective, the document must be read and considered in its totality as a response to each separate question. This type of reading will support most accurately the responses that evolved from the project.

The research process unfolded as a rich community experience of knowledge creation. The readers are asked to follow the text and to “listen” to what is being shared. They are advised not to listen for answers to a question in their minds. An important teaching from a Cree elder will help to situate the reader in relation to the text. The teaching points out that in a dialogue of any sort, the listener has as much responsibility as the speaker. The listener is totally responsible for what s/he hears and for any actions that ensue from what has been heard. The speaker is responsible for what s/he says but not for what is heard. The caution is that the text is not merely a response to the questions cited above. The text does respond but in a manner that is much broader than the usual direct address of a question. It offers as well an opportunity for a deeper understanding of how Aboriginal people actually see the issues that surround Aboriginal harvesting and gathering practices.

The research design for this project was comprised of several components. First, literature-based research was conducted through available and accessible written records of traditional harvesting practices of Aboriginal peoples in northern Alberta. A part of this research was completed by graduate students working under the guidance of the principal researchers at the University of Alberta.

Second, a significant component of the research project involved semi-structured and formal interactions within selected communities [3]. These dialogues and community workshop sessions supported the collection of personal narratives from Aboriginal community members, representing the primary data-base of Aboriginal voices speaking to their own perspectives on historic and contemporary traditional harvesting practices, including their attitudes and beliefs towards these practices. As such, this record forms an important body of new knowledge related to the research topic.

The community-based research component involved participation by approximately 100 First Nations, Métis and non-status Aboriginal persons [4]. This diverse representation provided an excellent opportunity for academic professionals, law- and policy-makers and Aboriginal community members to discuss a broad range of issues affecting traditional Aboriginal harvesting practices [5]. As the research process unfolded, however, no government representative or law enforcement official ever attended a community gathering. Complying with requests from the community participants, the research team did not extend formal invitations to the official representatives of the law.

With respect to the research process, one-on-one interviews were conducted intermittently throughout the research period. Group sessions and formal workshops involving the community participants and the full research team were held in central locations. Planning the fora involved careful consideration of the various Aboriginal peoples’ traditional protocols governing respect and group dialogues. Simultaneously, the research team had to consider the requirements around standard research ethics as well as the technical aspects of recording data and facilitating group processes in settings that did not necessarily appeal to some of the traditional Aboriginal people who were key participants of this research inquiry. Culturally sensitive planning and adherence to local traditional protocols, however, led to many valuable opportunities for discussions about Aboriginal harvesting practices with community people in safe and non-adversarial environments. These environments permitted the community research groups to identify, describe, and interpret the complexities of the legal characterization of Aboriginal harvesting practices, including the appropriateness of defining and treating some Aboriginal harvesting behaviors as criminal.

The research plan also considered intervention strategies that might have been implemented in order to deal with traditional harvesting practices outside of the context of the law. The community-based participation approach to the research process facilitated open discussion in the communities about intervention strategies that have been explored in the various regions. These discussions enabled the research team to compare the appropriateness and effectiveness of intervention strategies that were known to the community participants with those strategies that had been identified by the research team through traditional research methods, including legal research and literature reviews [6].

In all contexts, community activities and processes were designed and carried out in a way that supported the collection of information, and simultaneously enabled the research team to “give back” to the communities through the provision of information relevant to the topic, as well as the facilitation and participation in the sharing and co-creation of new knowledge amongst the whole group. The principle that research will benefit the community in which it is conducted is a critical element of Indigenous research methodology, as well as a strongly recommended ethical practice in contemporary social science research [7]. In order to ensure that the research content and findings would be grounded on information and shared experiences as described by Aboriginal peoples, community members from each of five regions in Northern Alberta were invited to serve as community representatives on the research team.

The regional representatives attended workshop sessions in each other’s regions and assisted in the facilitation of ongoing discussions in their own regions. By their presence and active participation in the work, they provided valuable endorsement of the process and the content that would otherwise have been difficult, if not impossible, to achieve on such a short timeline. The representatives are significant and respected persons in the communities and their participation served as statements of trust on behalf of the research team in general as well as for its objectives and its methodology.

The community sessions that were conducted during the project validated the report as evolving from Aboriginal community discussions and narratives. The substance or essence of most of the narratives were repeated in each of the regions, as individuals talked about their experiences with law enforcement officials, policies and practices and how these had taken and continue to take from them the right to live their cultures and values and to pass these ways on to their children, without fear and criminalization.

The significant connection and direct relationship between cultural identity and harvesting practices of Aboriginal peoples has not been investigated or explored in any significant depth by any researcher, including the Aboriginal people themselves. In the world of formal research and scholarship, especially in the social sciences, it is becoming less and less likely that such investigation would be conducted by non-Aboriginal researchers. As the numbers of Aboriginal scholars increases, questions of representation and cultural appropriation of “voice” begin to make sense in the context of research and scholarship. This principle of scholarly enlightenment supports the claim of Aboriginal scholars and community members that the elucidation of issues embedded in the relationship or connection between cultural identity and traditional harvesting practices needs to be carried out by Aboriginal scholars who have lived the traditional experience of that connection. There nevertheless continue to be few Aboriginal scholars, and the articulation of the specific, subtle and complex nature of that connection is rare. This reality makes the contributions of the community participants, including the Aboriginal researchers, particularly significant, in that they are the living expression of that relationship or connection and their words speak directly from that position.

At a final workshop involving the research team and the community participants (with some new people), the final draft report was presented and more narratives were shared in response to it. As had occurred in previous sessions, the report itself seemed to serve as a significant catalyst, inspiring and inviting community members to share their stories and to give voice to their thoughts on the topic of traditional harvesting and gathering. This last workshop re-iterated through additional narratives and powerful metaphors, stories and arguments that displayed how the criminalization of traditional harvesting practices is simultaneously both an historical and a contemporary phenomenon. While the people recognized and expressed their concerns regarding the long-term impact of such criminalization on themselves and their children, they left no doubt that they would not – could not – give up their rights to practice their ways of living. These practices were described and explained as the sources of their beliefs and their values. The practices themselves were represented as key elements of expression for Aboriginal cultures and, as such, were experienced and described as critical aspects of Aboriginal identities as individuals and as collectives.

No participants ever described an identity that was separate from his/her traditional harvesting activities. Further, every participant throughout the whole project articulated clearly a belief that no one had the right to prevent people from engaging in traditional harvesting practices in order to provide food and sustenance for their families. The people themselves never understood or described these activities as criminal. However, there was certainly a strong awareness and a solid understanding that officially, such actions were often considered “criminal” acts by the authorities. Stories involving prison and harassment were common. A shared vocabulary was evident in the workshop sessions that further demonstrated the common breadth and depth of such experiences. The vocabulary also reflected the nature of the relationships between the official “authorities” over wildlife, birds, fisheries and plants and the Aboriginal peoples who relied on these resources. Many participants referred to the criminality involved in preventing persons from living their traditions and providing for the needs of their families.

The following section of commentary and narratives exemplifies or supports the above statements:

Throw the fish back in the lake is only destroying them. I don’t know who makes those laws. If I wanted to fish now, I would have to buy another fisherman’s license. In the past, when things were tough, you went out and bought a fishing license and you made a living out of that.

When I come along to fish, I was scared all day long because they made a criminal out of you. If they sell you a license, they look all over your boat, your nets little bit tighter, not enough ice, get tickets for this, for that. If your buoys not painted right, give you a ticket for that. Harassment – they could jump into your boat just like you were nothing, open the vents. I felt violated – used to be scared when I saw the fish and wildlife coming with their boat. My brother used to say, ‘a person has to be scared of that big window’ referring to the windshield of their boat.

I did do some trading of moose meat for potatoes with other Aboriginal communities. It was a crime – I had to eat, my kids had to eat.

A crime can be anything. It is the way they use you – the way they read it. To me, it is not a crime to go out and kill a duck to eat, but to them, it is a big crime. They are forever looking in your vehicle, sneaking up to you, they’re there like flies. I said once ‘All you have to do is buy a commercial license and you become a criminal’. That is the way it was. It’s not nice.

They would come and look in the slop piles to see if there were any deer bones. If they saw bones, they would take you to court and pinch you. “Where did those bones come from?” I know of people charged because of bones in the slop pile.

In the South, if Fish and Wildlife find feathers, you go to court. You have to burn the evidence.

Park Wardens kill buffalo to feed dogs but people hunting and killing buffalo are charged.

The Parks are using laws to push us out of our territories. There are large parks areas held by government. Will these be opened up gradually to industry? Parks areas lead to restrictions on our use and we get criminalized. Classifying land as government land in parks areas gives them rights over land areas. This has an impact on traditional territories and rights to harvesting practices.

Selling furs is an issue here, too. Aboriginal people need permits and licenses to sell fur if they have no registered trap line, yet Hutterites and farmers sell fur as “protecting home”.

You can get permission in writing to hunt on private land because they (Fish and Wildlife) can turn around and make the white person a criminal. Without permission, you are the criminal.

Racism is on the increase against Métis since the Métis of Alberta and the province have an agreement in place for hunting and fishing for subsistence, without licenses from the province. Stories about the Métis stripping all the resources of hunting and fishing, destroying moose and elk and big horn sheep rampantly. Family members are being accosted with racial remarks in public places.

Fish and Wildlife remarks are not helping the racism reaction from the public: “Métis hunters shot and left it” and “No more hunting draws”.

D. Research Participants and Communities

Aboriginal participants in this research project self-identified as Aboriginal, Cree, Chipewyan, First Nation, and Métis. Community representatives participated from each of the following four geographical areas in Northern Alberta: Calling Lake/Wabasca/Sandy Lake, Grouard/Gift Lake/East Prairie, Lac La Biche/Conklin/Fort McMurray/Kikino, Fort Vermilion and Paddle Prairie.

The research communities were selected on the basis of the principal investigators’ personal knowledge of the unique experiences of traditional Aboriginal harvesting practices in these particular regions. This knowledge was based on years of contact and engagement with these communities, so the trust required between researchers and community members that would enable people to speak freely and safely on this topic was well established. Further, as Indigenous researchers, the opportunity to facilitate and participate in an intense and productive research process with people and communities where relationships of trust had already been established was a logical decision. Standards of ethics and community protocols were in place and the work could begin almost immediately. Finally, the participants from these communities could benefit greatly from the research process in that they represented, as Metis people in Canada, the population of Aboriginal people most highly criminalized. To be given an opportunity to speak and be heard and respected is in itself a recognition that brings healing and energy to people who have suffered greatly for living in their traditional ways.

As stated earlier in this document, the traditional territories of these communities usually extend beyond the government-established boundaries of municipal districts, or in the case of First Nations, of federal Indian reserves. It is typically on these traditional lands that harvesting activities take place, whether or not these activities fall into the category of criminality.

While there are often similarities between communities that lie within the boundaries of Aboriginal traditional territories, it is important to acknowledge that there are also fundamental distinctions between the people themselves that will require elaboration in the interests of accuracy and clarity of understanding. One such important distinction is the one of legal identity that effectively defines and discriminates between the harvesting practices of persons who are categorized as First Nations or Indian and those persons who are categorized as Métis or non-status Indian [8]. These legally ascribed definitions and identities of persons affect and determine the bases for the criminalization of traditional harvesting and gathering practices. The most common list of Aboriginal identifiers at present includes: “First Nations”, “Indian”, “Bill C-31”, “non-status”, “Metis” and “Inuit”. Only those persons who are legally identified as “Indians” under the Indian Act, including but not limited to members of an Indian band that is signatory to a formal treaty with Canada (or Britain), are permitted to harvest and gather in traditional ways, but always within the parameters of location and practice established by a treaty or the Indian Act.

Several individuals involved in the community interviews and gatherings pointed out that they referred to themselves as “Indian” in response to a question about how they self-identified. Notwithstanding the basis of their application of self-identity, in many instances, these same individuals were not legally recognized as being “Indian” under the federal Indian Act, the sole authority on who is and who is not entitled to be identified legally as an “Indian”[9].

This reality is reflective of the fact that the term Indian is usually accepted in Aboriginal communities as a social identifier. This is particularly true where the person is not involved in any significant way with the political processes through which such definitions are determined and ascribed formally and legally to Aboriginal persons in Canada. People who use the term Indian as a social identifier often live traditional Aboriginal lifestyles and do not differentiate amongst themselves on the basis of the Aboriginal categories that are recognized by Canada, namely Indian, Inuit, and Métis [10]. In many informal settings of Aboriginal peoples, the term “Indian” is used much like the formal term “Aboriginal” is used by non-Aboriginal people. It describes generally all of the people collectively. It is also the term used by many people of the oldest generations. In these contexts, it has no or little political significance. Yet, the basis for many cases of “illegal” harvesting can be traced back to the common usage and meanings of these specific terms and identifiers. If the people self-identify as “Indians” and are referred to as “Indians” by an uninformed public, how are they to know that they are, in fact, not “Indians” for purposes of the laws of the land? Who is responsible to inform that Indigenous segment of the public on the more subtle points of the externally and legally ascribed identifiers that are impacting on and determining their rights to traditional ways of living and being?

[1] See the following cases accessible through the Alberta Courts Judgment database at http://www.albertacourts.ab.ca , R. v. Quinney, 2003 ABPC 47, R. v. Ferguson, 2001, ABPC 215, R. v. Breaker. 2000, ABPC 179. R. v. Lamouche, 2000, ABQB 461, R. v. Rodgers, 1998, ABPC 127, R. v. Jacko, 1998, ABPC 10.

[2] Graham, K. & Peters, E. (2002) Aboriginal Communities and Urban Sustainability. Discussion Paper F/27, Family Network. Canadian Policy and Research Networks.

[3] See Appendix C for the list of communities.

[4] A list of individual community participants who gave consent to their names appearing in this report is attached as Appendix D. Given the nature of the data, and possible threat to research participants, ethics requires that no name be attached to any particular quote in the text.

[5] During the planning stages of the project, representatives of the provincial government had been invited to attend sessions, either in the communities or as separate meetings. Research team representatives did have opportunity to meet independently with Crown representatives and Alberta provincial government department representatives.

[6] All research sources are fully referenced in the footnotes of this report. A bibliography of sources is also included at the end.

[7] Weber-Pillwax, Cora (1999) “Indigenous Research Methodology.” Journal of Educational Thought, Winter 1999

[8] Examples of these types of occurrences will be elaborated upon in this report where appropriate.

[9] Two men in particular responded in this manner, using the self-identifier Indian. Both were former members of a Metis Settlement, now card-carrying members of the Metis Nation of Alberta, a political organization representing Metis persons within the province of Alberta. Although it is beyond the scope of this project to address the complexities of this legal and political situation, its occurrence is worth noting. The Metis settlements in Alberta were lands set aside in 1938 for use and occupancy by Metis peoples. The settlements are known as “the only Metis land base in Canada”, suggesting a foundation based in Aboriginal rights entitlement. Similarly, the Metis Nation of Alberta is said to represent the interests of Metis people in Alberta. Membership in the Metis Nation is dependent on one’s ability to demonstrate ancestral connection to a historic Metis community. Membership by Indians is explicitly prohibited. In theory, politically and culturally, card-holding Metis Nation members do not identify as Indian, only Metis.

[10] As set out in Section 35 (2) of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11: 35. (2) In this Act, "aboriginal peoples of Canada" includes Indian, Inuit and Métis peoples of Canada.