Band vs Tribe

Simogyet Malii, the chief negotiator for the Gitanyow Hereditary Chiefs, makes a powerful assertion that the recent cultural appropriation debate belies a deeper arrogation. First Peoples cultural forms are expressions of their relationship to their lands and waters and are inseparable from their traditional laws. He draws our attention to the fact that the significant  ‘appropriation’ “isn’t happening in art galleries or on the pages of high-minded magazines. This is happening on our lands and in the courts and legislatures, and it has to stop.”

A case in point is how the Lax Kw’alaams Band Council is seeking to deny or, to extend the analogy,  ‘appropriate’ the ancestral authority of hereditary chief Simogyet Yahaan, of the Gitwilgyoots in connection with and PETRONAS/ Pacific NorthWest LNG project on Lelu island. The Band Council has launched a legal challenge to Yahaan’s locus standi to repersent his tribe and protect its territory. Simogyet Malii notes that this assertion by the Council is unprecedented and that, “It challenges the respect for aboriginal law and authority, and undermines any possible reconciliation between Canada and aboriginal peoples.”

There is clear  preceedant, in Federal Court of Appeal decions, that the Crown is obliged to properly consult First Nations in connection development projects on uceded lands under their jurisdiction and the technical question at stake here is quite simply, who should the Crown rightly consult – ancestral hereditary chiefs or the Band Council that derives its authority from  colonial legislation. The Gitwilgyoots and the Gitanyow who believe they too have a right to be consulted do to impacts of this project on the Salmon ecology and consequently on their economy has brought a request for  Jucial review in this matter to the Federal Court in Vancouver . Yahaan has said , “The … council deemed they could go out and take tribal territory and use it at their own discretion for oil and gas. Their only jurisdiction is on reserves. Outside that jurisdiction belongs to the tribes.”

The Band Council’s apolication to the courts to have  Yahaan declared persona non grata  in this manner is, rightly or wrongly, an attempt to  circumvent this important questoin of jurisdiction and right adewuate consultation. Simogyet Malii’s explication of the depths of ‘cultural’ apprioriation seems briliant to me but it must be an obvious fact to the First Peoples with whom reconciliation is acknowledged in the formalities of state, but  the continued aporopriation and exoloitation of whose sacred and material possesions is ongoing.


Hudud 6: Jurisdiction

In 1988, an amendment was made to Article 121(1) of the federal constitution with the result that the High Court no longer derived authority from the constitutional itself, but from such “powers as may be conferred by or under federal law”. The significance of this amendment is that the separation of powers is diminished as the judiciary has been rendered subservient to parliament. Further, in another amendment made that year, a new clause (1A) was inserted into Article 121 that stating that “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” Regardless of the merits or demerits of this new autonomy of Sharia in Malaysian state law, it seems clear that the civil courts now can not interfere in matters which fall within the jurisdiction of the syariah courts. As Shanmuga Kanesalingam notes however, a problem  seems to have arisen where the federal judges have been asked to rule on situations in which  the syariah courts  may have overstepped their boundaries. The current interpretations of Article 121(1A) reveal the judges of the civil courts understand that they can no longer intervene. This disavowal of the judges of their own authority leaves a lacuna of justice at the boundary of muslim/ non-muslim interactions in contemporary Malaysian life. A category of such cases is the Syariah dissolution non-Muslim marriages registered under civil law in situations where one spouse had converted to Islam, with implications for the status of children of those marriages. Indeed, in such cases, the orders of the Syariah courts are being enforced  against non-Muslims. While it is debatable whether non-muslims have the locus standi to speak on justice for their muslim peers of the increased punitive powers brought by the law presently making its way through parliament, it is absolutely clear that all Malaysians should raise questions and concerns about such increased powers in the light of the federal judges abrogation of their own authority at the interstices of muslim/ non-muslim relations in our country.