BRIEF entered into court as an intervener, in the case of the city of Victoria vs Charles Champion.
The case of free speech because of Indigenous Rights under UNDRIP
Intervener's Brief of Argument
Aboriginal Cultural and Spiritual Practices
Facts of the case
1. The Intervener in this case is Meaghan Walker, a Coast Salish
Aboriginal woman who is also partially disabled both physically and
mentally due to arthritis and the medications she has to take in order
to cope with that disease.
2. The Intervener is the wife of the person accused of operating a
business without a license by the City of Victoria and is further
accused of contravening the city of Victoria by-laws. The Intervener's
husband is accused off putting up 4 posters to advertise the We Love
Dirty Kitchens house-cleaning business on Hollywood Crescent.
3. The Intervener is the person who owns the business in question. The
Intervener is the person who has hired people to put up posters to
advertise her house-cleaning service, and has gone and put up the
posters herself.
4. The Intervener believes in good faith that there is much spiritual
and cultural signifigance to the activity of cleaning homes (either on
the Indian Reserve or off) and that by engaging in this activity - she
is protecting, preserving and revitalizing her culture as an
Aboriginal person. The Intervener will be glad to call witnesses to
prove that "Luquthut Lelum" is a part of her culture if that is disputed.
5. The Intervener will be glad to call expert testimony,
(practicioners of Coast Salish Indian medicine) to speak to the issue
of the spiritual rituals that she has been trained to do in order to
"clean a home".
6.The Intervener is reluctant to discuss the spiritual practices and
beliefs of her people because these beliefs are sacred to her people -
and it's generally considered a bad idea by her people to discuss
their religion with people of different religions. The Intervener's
People's experience when it comes to religious toleration and respect
viz. the Canadian Government has not been very good. The Intervener
only reluctantly is willing to discuss her Aboriginal
cultural/spiritual/religious beliefs and practices provided they are
treated with a modicum of respect and with some toleration.
7. It is precisely because there has been such a terrible series of
events in the History of Canada, with respect to the Spiritual
Practices of Coast Salish peoples (and other Aboriginal Peoples) being
nearly completely destroyed that Canada has attempted to make great
efforts to ensure that such religious persecution be prevented from
occuring, AND that the damage done in the past by such religious
persecution be remedied to the extent that the Canadian Government has
been able to do so. Hence the Charter sections 25 and 35 even existing
in the first place within the Canadian political system.
Issues to be Considered:
8. While conducting the activities of the tsetsuwatil known as "We
Love Dirty Kitchens", was Intervener engaged in cultural/spiritual
practices of her people?
9. Are those practices fundamental rights as defined in Section 2 of
the Charter?
10. Are those practices human rights as defined by international law
and treaties to which Canada is a party?
11. Are those practices protected by Section 25 or 35 of the Charter?
12. Are those practices protected by Section 6, 7, 26 or any other
part of the Charter or other parts of the Constitution Act 1982?
13. Are those practices protected by any other applicable law such as
Snuweyeth, the ancient laws Intervenor's people, international law or
treaties including, but not limited to the Charter of the United
Nations, the Charter of the Organization of American States and the
customary international law arising from the ancient norms and
practices of relations between sovereign nations?
14.If the practices are human rights and/or rights protected by the
Constitution Act 1982, do the bylaws impair those rights at all?
15. If the bylaws impair rights, do the bylaws pass the Oakes test?
16. If the bylaws impair rights and/or violate other applicable law,
what is the remedy?
Argument
17. In the ancient traditions and teachings of the Somena Nation and
other Aboriginal nations of the Coast Salish people, there is
spiritual significance to house cleaning. This is an important part of
Somena culture and indeed it's recognized as a part of the culture of
all Coast Salish peoples. The term for cleaning a house in the
Hul'qumi'num language is Luquthut Lelum. The Hul'qumi'num language is
the native language of the Somena Nation and the Cowichan Tribes, the
Chemainus Indian Band, Penelekut Indian Band, the Lyackson Indian
Band, The Halalt Indian Band and the Lake Cowichan First Nation.
18. Luquthut Lelum can refer to physical cleaning of a house and/or a
cleansing of the house of bad spiritual influences. There is really no
clear distinction in Somena tradition.
19. The spiritual element is particularly clear when cleaning the
house of a recently deceased person or when cleaning the floor of the
thi lelum (big house). The thi lelum has come to be used less and less
as an actual residence, but the thi lelum is the traditional form of
housing used by the Somena Nation and other Coast Salish people. Until
quite recently, there was no difference between a house and a thi lelum.
20. The Intervener would like to make the point that if Hwinitum
(Non-Indians) People had not arrived on the shores of her people and
so interfered with the culture of her people to the extent that they
did - there is no doubt in her mind that as part of her life as an
Indigenous Person she would have been trained, growing up to clean a
home in the ways of her ancestors. As it is - she only learned these
traditions and beliefs and practices later in life after she returned
to her people after having been removed from her family and the
attempted forced assimilation of her into Hwinitum (Non--Indian)
culture.
21. The Intervener would also like to remark that it is her
understanding that in order for a cultural practice to be protected,
it is not required (according to previous court decisions on
Aboriginal Rights) that the Aboriginal person excercising that right
to behave as if time had stood still. In order to assert hunting
rights, Aboriginal people are allowed to use a rifle, rather than a
spear or a trap. Furthermore, just because the Intervener does not
regularly run around the city of Victoria and engage in ritual
cleansing on a daily, weekly or even monthly basis, does not mean that
the practice when it is done should not be protected. There is a right
for people to excercise their religion, no matter how much they pray,
or how often, or which church they go to.
22. The Intervener would also remark -- it is absolutely true that
before she became more aware of her culture and the beliefs and
practices of her people, she probably would not have understood why
anybody would consider house cleaning to be a culturally signifigant
behavior or practice. As it is, she had to learn slowly and over time
about the different beliefs and practices with respect to house
cleaning and the spiritual and cultural signifigance of this work. At
one point, the Intervener believed (incorrectly) that Native people of
her culture did not really have strong beliefs about house-cleaning.
She witnessed many homes in her Indian Community that were untidy,
unkempt and could only be considered slightly better than squalor. She
later came to understand that this untidy - and unclean way of living
was a brutally terrible side-effect of a number of factors impacting
her people.
23. At one point, house-cleaning was considered a craft that belonged
to all Coast Salish women. Cleaning one's home and keeping it clean
and tidy was one of the things that all young women were trained how
to do from the earliest age in order to help out their families. Often
times, it was recognized amongst our people that sometimes one's
parents are not the best people to impart important knowledge, wisdom
and information to their children. In the Coast Salish Tradition, when
young women were growing up, they would occasionally be sent away from
their immediate family for a period of time in order to be trained how
to take care of their homes. The young women, sometimes in groups
sometimes alone would go and stay for a period of time with a close
relative -- and somebody who was a "knowledgeable person" or
"St'alt'naun'net". These training periods would take place at key
times in a young person's life, like shortly after they officially
became a young woman, or during their first pregnancy.
24. One particular aspect of Coast Salish culture and spirituality
that should be noted is that Coast Salish people had no kind of
religious or spiritual hierarchy. Every clan or family of families had
their own beliefs and their own practices with respect to Snuwuyth.
Therefore,these training sessions for young women were an important
part of learning how to live as a Coast Salish Woman, because when they
married it would be important for the young woman to be flexible
enough to learn that different families have different rules, rituals
and practices with respect to every aspect of life. In Coast Salish
culture no man and woman could ever marry if they shared an ancestor
going back many generations. So, sometimes, especially in the
marriages of very high-ranking people from very wealthy and large
families, the arranged marriages would mean that a young woman would
have to be trained by her future in-laws to be prepared to live
amongst them and their rules, rituals and practices.
25. As such, it's important for anybody reviewing this information to
consider the overall nature and structure of Coast Salish life, both
pre-contact and post-contact in order to be able to determine whether
or not "house cleaning" was an integral and important and vital part
of the culture of Coast Salish People. In order to verify what has
been suggested here, it would be nesccearry to call forth testimony
from a variety of different families and individuals within those
different families so as to prove the flexible and sometimes even
possibly contradictory nature of the "religion" of Coast Salish
people. It's not as if there is a Pope or Church that even comes close
to claiming to be able to speak to the religious and spiritual beliefs
of ALL Coast Salish People.
26. The intervener did not grow up on the Cowichan Indian reserve. The
Intervener was raised by Hwinitum (non-Indians) and spent from the age
of 15 until 21 trying to locate her biological family and to learn of
her culture. Aside from being able to read a few books, the
Intervenerer was not able to learn very much about her culture until
she found her family and ultimately moved home to the Indian Reserve
at the age of 26. The Intervener can understand the skepticism with
which her claim to be engaged in a culturally signifigant practice by
"cleaning homes" for a living. Before she moved home to the Indian
Reserve and lived amongst her own community and began to learn about
her culture and the Coast Salish spirituality and religious practices,
she did not understand how something as seemingly "mundane" as
scrubbing a toilet could have spiritual signifigance.
27. However -- In Coast Salish Culture, when you live your life as an
Indian person -- if you *are* living as a Coast Salish Person, your
whole life is imbued with religious/spiritual practice. In the words
of Willie Seymour, the respected Thi-Lelum (Big House) speaker, "Your
whole life is supposed to be a prayer". But more specifically than
this -- In Coast Salish culture, the act of physically cleaning a home
(or big house of Thi Lelum) does have spiritual and cultural
signifigance. Every year, before the Seeyowun (Spirit Dance) happens,
and before work is done and blankets are brought out onto the floor,
the floor is ritually cleaned. This is a practice that ANY Coast
Salish Person can discuss to the extent that they can remark that
indeed this does happen.
28. In addition - while it is true that Coast Salish people do not
"smudge" like the Plains Indians do, (Smudging is a form of ritualized
spiritual cleansing of one's dwelling place, using an Eagle Feather, a
shell and Sage and Sweetgrass) -- Coast Salish people also "smudge"
but they do not call it that. There's a certain kind of plant that we
harvest the seeds from that we will put in the fire, or put into a pot
of boiling water -- and there are prayers that we say to cleanse the
home. We call this ,"family love medicine". It is believed that when
your home is properly cleaned and tidy that people in that home are
better off mentally, emotionally, spiritually. It is also believed
that family arguments are less likely to happen when a home is
"properly" cleaned.
29. When the Intervener first came home, she discovered many of her
relatives did not have the skills of cleaning a home. When she
politely and slowly over time tried to find out why so many of her
relatives did not keep their homes clean and tidy -- she discovered
that a number of factors were having an impact on the situation.
a) The Residential School experience. Many of the Coast Salish women
were not raised in a traditional home environment and allowed to keep
their language and their culture intact. They were removed from their
homes and their families and sent into the Residential School system
where they were treated like slave-labor in many instances, as they
had to work to "earn their keep". The Intervener believes that this
forced labor of young people at such tender ages, by people who treated them with utter contempt for being "savages" (and yes, the non-natives were that cruel with how they talked about our people) perhaps created a feeling of deep and abiding resentment towards this kind of work (house-cleaning)
b) Alcohol and Drug Abuse -- As a major consequence of the Residential
School experience, many Coast Salish young women developed drug and
alcohol problems which again impacted upon their over-all life-skills
and their development as functional adults. For these women, trying
to keep their house clean while also trying to live a life under the
terrible influence of drugs and alcohol was/is next to impossible. If
people are drinking and/or using -- they aren't likely to win any
awards for home-making.
c) Another consequence of the Residential School system is that
traditional institutions which had previously served to educate young
Coast Salish Women about these matters were replaced by the
Residential School system. Terrible pressure was brought to bear upon
the parents of young women to cease passing along the language,
knowledge, beliefs and spiritual practices so as to ensure that their
children would not be singled out for punishment by the Non-Indian
educators and administrators.
30. All in all -- these rituals concerning the cleaning of a home, and
all the associated practices that go along with it, ARE indeed in
grave danger of being completely forgotten by Coast Salish People.
There are many Coast Salish People who are desperately trying to keep
the traditions alive and to keep the practices alive and to keep the
beliefs and pass them on to our children, but it is not easy. Coast
Salish People are living in mostly third world conditions, struggling
to get by. Increasingly if one wants to be able to escape welfare and
poverty, one must leave the Indian Reserve where these practices,
beliefs and rituals are common place, and instead live in the big cold
and lonely cities where nobody has even heard of them and would
consider a person quite strange indeed for having such beliefs.
31. The Intervener in this case is one such Indian who lives in
Victoria because there is simply not enough work opportunities
afforded to her closer home to her Indian Reserve. As such she does
not get much of a chance to engage in the spiritual and cultural
practices of her people that are more commonly known, like the Mask
Dance, or Rattles Ceremony, or Brushing Off, or Namings, or Give-Away, or Bone-Game... etc... The Intervener does however practice the rituals associated with house-cleaning in her own home, and she has also been honored to have been asked to ritually and spiritually clean the homes of some of her clients, in addition to the work she has done in the past for her
relatives. The Intervener does not engage in these practices for her
clients without being asked to do so. She has also been asked to
ritually cleanse the home of one of her former contractors, but
declined to do so and referred that person to a much more knowledgable
person with more experience.
32. It must be understood in almost all Indian cultures in North
America that there are some very very specific protocals and rules
with respect to the practice of Indian medicine. One of those rules is
that anybody who is an actual medicine person would never "advertise"
that they do this work. People find out that a person does this work
and seek them out. If anybody is hawking a book, or selling a crystal or
otherwise engaged in commerce with respect to this "work" -- they are
considered to be "plasticos" or "plastic medicine people". A joke. It
must be stated that while it is true that the Intervener does not call
herself a medicine person, and does not advertise as such -- she has
been asked to do this kind of work by some of her clients and by some
of her relatives. As such the Intervenor would be glad to call such
individuals as witnesses.
33. The Intervener recognizes that this might all be considered quite
confusing to somebody who has little or no knowledge of Coast Salish
culture. The Intervener has tried very very hard to come up with a way
to translate what she does into words that Non-Indians would
understand. The closest analogy that the Intervener can come up with
is to suggest that by cleaning homes as an Coast Salish Aboriginal
Person who believes in the religious/spiritual practices of Coast
Salish People, it's a little bit like the Interverner is being taken
to task for practicing feng-shui without a permit.
34. For these reasons, and others along these lines,the Intervener was
engaged in cultural and/or spiritual practices of her people while
conducting the activities of the tsetsuwatil known as "We Love Dirty
Kitchens".
35. The freedom of religion and the practices involved in such
religion or system of spiritual beliefs is a fundamental right as
defined in Section 2 of the Charter, particularly Sections 2(a) and
2(b).
36. The freedom of religion and the practices involved in such
religion or system of spiritual beliefs is a human right within the
meaning of Article 18 of the Universal Declaration of Human Rights.
Canada has voluntarily undertaken to respect the culture and religious
freedom of aboriginals and others in:
Article 7 of the Helsinki Declaration
Article 9 of the "Inter-American Democratic Charter".
Articles 73 and 74 of the Charter of the United Nations.
The Charter of the United Nation in particular is a binding
international treaty to which Canada is a party.
37 The cultural and spiritual practices engaged in by Intervener are
human rights in international law and Canada has undertaken to respect
such rights in at least one international treaty, namely the United
Nations Charter.
38. These practices are also protected under Canadian domestic law by
Section 25 or 35 of the Constitution Act 1982 as well as by Section 6,
7, and 26.
39. Intervener's practices are also protected by other applicable law
such as Snuweyeth, the ancient laws Intervenor's people, international
law or treaties including, but not limited to the Charter of the
United Nations, the Charter of the Organization of American States and
the customary international law arising from the ancient norms and
practices of relations between sovereign nations.
40. The bylaws of the Corporation of the City of Victoria interfere
with the exercise of Intervener's fundamental rights by prohibiting
Intervener from engaging in house cleaning without a business license.
Minimal or not, this is an impairment of Intervener's rights.
41 The bylaws do not pass the Oakes test. There is no pressing or
substantial purpose. The objective is not rationally connected to the
means chosen to achieve it. The means chosen is disproportionate to
the impairment of rights. Other, far less restrictive options were and
are available to the Corporation of the City of Victoria. Even with
the bylaws, the city's purposes have not been achieved.
42. The remedy exists under Section 24 of the Charter as well as under
common law, Snuweyeth and international law to simply require the
Corporation of the City of Victoria to stop interfering with
Intervener's efforts to preserve her ancient culture which continues
to be pushed closer and closer to extinction.
Order Requested
43 A finding that the Streets and Traffic Bylaw Section 109 is
unconstitutional and for that reason null and void. An acquittal in
Case B589-1 or a dismissal with prejudice.
44. A finding that the Business License Bylaw in its entirety is
unconstitutional and for that reason null and void. An acquittal in
Case B590-1 or a dismissal with prejudice.
45. A court order forbidding the city from issuing any further
municipal bylaw tickets to defendant or defendant's family or
co-workers in violation of their constitutional rights.