 |
| Victoria Shroff |
While reconciliation is one of the foundational purposes, we need to understand that Indigenous languages, cultures and laws are interrelated and need to be given space to be expressed in order to meaningfully bring about reconciliation and inclusivity.
Affirming rights and operationalizing reconciliation is bound up with the application of Indigenous languages in our legal system. For the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to work, law needs to be reflective, and justice must be accessible to all.
Mi’kmaw language in court decisions: Major step forward for Canada’s legal system
In December 2022, a small claims court in Nova Scotia released a groundbreaking decision, MacKinnon v. MacKinnon 2022 NSSM 38.
The decision was written in Mi’kmaw language by adjudicator Tuma T.W. Young of the Eskasoni First Nation. (Nova Scotia recently declared Mi’kmaw as its “first language.”) Employing L’nu or Indigenous laws through the use of Mik’maw language sets down an Indigenous legal framework for the ruling and boldly puts truth and reconciliation forward in the court system. Young, a survivor of the Indian Day schools, advised the CBC how the Mi’kmaw language is a vessel for their nation’s legal framework. Undoubtedly as Young notes, writing a decision in Mi’kmaw, is “a big step forward for the Canadian legal system.”
The icing on the cake for me as an animal law lawyer is that the Nova Scotia case was about pet custody of a Golden Retriever dog called Brixton. Before ultimately favouring the claimant as having a stronger ownership claim of Brixton, the court neatly set out the law regarding pets and ownership:
17. This is not the first time this type of dispute has arrived at the Court nor the Court suspects that it will the last. For deciding this case, it is very helpful to look to the decision of adjudicator Gus Richardson in MacDonald v. Pearl, 2017 NSSM 5 where the adjudicator states at paragraph 25:
I have reviewed the following Small Claims Court cases with interest: Gardiner-Simpson v. Cross 2008 NSSM 78; Hawes v. Redmond [2013] NSJ No. 739; Millet v. Murphy [2011] NSJ No. 182. I believe that the following principles are applicable:
a. Animals (dogs included) are considered in law to be personal property;
b. Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;
c. Ownership of – and hence the right to possess – an animal is a question of law determined on the facts;
d. Where two persons contest the ownership of an animal, the court will consider such factors as the following:
b. Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;
c. Ownership of – and hence the right to possess – an animal is a question of law determined on the facts;
d. Where two persons contest the ownership of an animal, the court will consider such factors as the following:
i. Whether the animal was owned or possessed by one of the people prior to the beginning of their relationship;
ii. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
iii. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
iv. Who purchased or raised the animal;
v. Who exercised care and control of the animal;
vi. Who bore the burden of the care and comfort of the animal;
vii. Who paid for the expenses of the animal’s upkeep;
viii. Whether a gift of the animal was made at any time by the original owner to the other person;
ix. What happened to the animal after the relationship between the contestants changed; and
x. Any other indicia of ownership, or evidence of any agreements, relevant to the issue of who has or should have ownership or both of the animal.
ii. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
iii. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
iv. Who purchased or raised the animal;
v. Who exercised care and control of the animal;
vi. Who bore the burden of the care and comfort of the animal;
vii. Who paid for the expenses of the animal’s upkeep;
viii. Whether a gift of the animal was made at any time by the original owner to the other person;
ix. What happened to the animal after the relationship between the contestants changed; and
x. Any other indicia of ownership, or evidence of any agreements, relevant to the issue of who has or should have ownership or both of the animal.
This is not a complete list of factors that might be considered. Nor is any one or more of them necessarily sufficient to establish ownership. And there is more when it comes to animals that are pets.
Same paragraph in Mi’kmaw:
Ekitkmap wi’katiqnk Gardiner-Simpson v Cross, 2008 NSSM 78, Hawes v Redmond [2013] NSJ No. 739aq Millet v Murphy [2011] NSJ No. 182. Ketlamsitman ta’n teluekl wula wi’katiqnk aq teluekl ta’n nutaq telasik ta’n o’plamatimk ika’k. Wula wi’katiqnk teluekl wula a’mispa tplutaqan ma’juwata’sikl:
a. Waysisk teli-wesuwalujik tplutaqanektuk alsumujik. L’muj amijpa telisuwalusik na alsumut.
b. O’pla’matijik wenik amijpa nuji-l’suta’sik wen alsimatl wa’sisil mu kisi- aqata’sik kowey ma kiluek wjit wa’sisk.
c. Wen alsumatal wa’sis, amijpa aqatasik:
d. Wen weskeywasnaq kesi-mnaq toqomanek wkswijinuk?
b. O’pla’matijik wenik amijpa nuji-l’suta’sik wen alsimatl wa’sisil mu kisi- aqata’sik kowey ma kiluek wjit wa’sisk.
c. Wen alsumatal wa’sis, amijpa aqatasik:
d. Wen weskeywasnaq kesi-mnaq toqomanek wkswijinuk?
i. Etek kisa’matuti wjit wen alsimatal wasisk?
ii. Taltek ta’n tel la’matijik wkswijinuk ta’n teju poqji-o’pla’matimik?
iii. Wen kistlwa’tel waisis kisna wen kisikwen natel waisis?
iv. Wen nujewasnl waisis?
v. Wen maliamapln waisis?
vi. Wen apankitoqkip ta’n tel malia’mut wasis?
vii. Wen iknumus waisis?
viii. Talipi’es waisis taju kis puna’ltimek wskijinuk?
ix. Etek kowey piluwey ta’n kisiaqatasikoq aq apoqtotew ta’n teli- kista’sutel wen alsumatl wasis?
ii. Taltek ta’n tel la’matijik wkswijinuk ta’n teju poqji-o’pla’matimik?
iii. Wen kistlwa’tel waisis kisna wen kisikwen natel waisis?
iv. Wen nujewasnl waisis?
v. Wen maliamapln waisis?
vi. Wen apankitoqkip ta’n tel malia’mut wasis?
vii. Wen iknumus waisis?
viii. Talipi’es waisis taju kis puna’ltimek wskijinuk?
ix. Etek kowey piluwey ta’n kisiaqatasikoq aq apoqtotew ta’n teli- kista’sutel wen alsumatl wasis?
Mu na wula putaqa’nuk tptutaqan kisi-aka’tasik. Aq mu newtejkunuk a’je’nuk ja’mu pilwuek. Aq mu na pasik wasis na pasik tuemuk wen.
Nike’ Panuwijko’tasit
Nike’ Panuwijko’tasit
Decision makers can use other sources besides statutes, common or civil laws
I asked adjudicator Young about the precedent-setting MacKinnon case on Feb. 1 and received an illuminating reply about the important role of language to Truth and Reconciliation (TRC) Calls to Action and Justice: “... by writing the decision in L’nu, it brought L’nu Tplutaqan (Mi’kmaw laws) to the court through our language. Thus, it shows that decision makers can utilize other sources of laws besides Canadian statute, common or civil laws. It can now use L’nu legal principles in consideration and making of a decision. This can help the courts meaningfully implement the TRC Calls to Action and the MMIWG Calls to Justice.”
The MacKinnon decision will be featured in our Animal Law syllabus at UBC’s Peter A. Allard School of Law this autumn for showing how courts can steer us in interesting, thoughtful and important new directions toward meaningful reconciliation.
The MacKinnon case in Mi’kmaw language provides a guidepost for decision makers to incorporate other sources of law, not just settler law. While its subject is an animal law case, employing Mi’kmaw and other Indigenous languages will have a wide-ranging application for many other cases going forward.
Wela’lin/thank you.
V. Victoria Shroff is one of the first and longest serving animal law practitioners in Canada. She has been practising animal law for over 20 years in Vancouver at Shroff and Associates and she is adjunct professor of animal law at UBC’s Allard School of Law and Capilano University. She is recognized locally and internationally as an animal law expert and is frequently interviewed by media. Her new book, Canadian Animal Law is now available at LexisNexis Canada store. Reach her at shroffandassociates@gmail.com, @shroffanimallaw or LinkedIn.
Interested in writing for us? To learn more about how you can add your voice to The Lawyer's Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.