A brief unscheduled pause: perhaps a respite, or an opportunity? The latter, I hope: I’m waiting for the questions I’m going to be asked on my comprehensive examinations to be formulated, and while I thought I was finished with my reading, I’ve decided to use this time to carry on, addressing one of the absences in my reading with John Borrow’s book, Canada’s Indigenous Constitution. Borrows is an Anishinaabe legal scholar who teaches at the University of Victoria, and I assume the argument he presents in this book will be quite different from John Ralston Saul’s claim that Canada (its government and law and culture) is essentially Métis—a suggestion that makes the Métis people I’ve talked to pretty angry. That’s my opening assumption; let’s see what Borrows himself has to say. Oh, I want to point out before anyone (other than myself) reads any further that this book is lengthy and the arguments detailed and, frankly, sometimes over my head, so this summary is, in turn, quite long as well.
The book begins with Nanabush. He’s writing and watching birds and otters feeding on a beach on Vancouver Island and longing for his home reserve in Ontario. “The words of power he is most familiar with are found in the law,” Borrows writes of Nanabush (who appears to be a stand-in for Borrows himself):
He hates them. He loves them. They are just like him: conflicted, cross-cutting, double-edged, and inconsistent. They hold the ability to heal and they have the potential to destroy. . . . The law is a vicious, delightful thing. Yet he also knows the law can be like the diamond-crested waters beyond the shore, teeming with life and purifying in its potential. The law is a nurturing, hopeful being too. Yes, he thinks to himself, the law is just like him—a trickster—simultaneously full of charm and cunning, good and evil, kindness and mean tricks. (4)
Nanabush “writes to destroy and he writes to create, though he can never be quite sure if he is destroying or creating the things he cares about. He often wonders if, in the end, his words will help or hurt what he most deeply cares for and treasures. Sometimes he even forgets to be concerned. He takes so much pleasure in being a transformer that he occasionally forgets what he really loves” (4). He considers becoming a bird, but an eagle feather falls onto the grass in front of him:
It whispers of peace. The message sinks deep into his heart,” Borrows continues. “He changes course, once again. He thinks to himself, I don’t want to be an eagle or a crow today. I’ll be my truer self. I’ll be an otter. That is my “dodem”: nigig. They have taught me better than anything else today. I will write about power from their perspective, that of my clan, kin, and people, working together, for sustenance, in harmony. Four otters and the law . . . (5)
I’m not quite sure what to make of this “Retroduction,” as Borrows calls it: the association between the author himself and Nanabush in particular. But it indigenizes what follows, I think. If Borrows’s interest is in harmony and sustenance and peace, if the four otters suggest the four directions, if the otter which is the vehicle for his exploration is the name of Borrows’s clan, then from the outset Borrows is locating his discussion of the law—a positive one, it seems, with generous ambitions—the book is going to be deeply implicated in Indigenous worldviews and methodologies.
The book’s first chapter, “Living Legal Traditions,” begins with a statement of purpose: “This book examines the standards that we consider authoritative in making judgments about the law in Canada. It asks questions about the criteria we use in measuring the regulation of activities and in guiding the resolution of disputes” (6). Despite the peace and prosperity generated by Canadian law, we “continue to suffer from conflicts rooted in long-standing disputes about the legitimacy of its origins and the justice of its contemporary application” (6). Indigenous peoples do not believe “that the rule of law lies at the heart of their experiences with others in this land. In this respect, Canada’s legal system is incomplete” (6). More importantly, the laws of Indigenous peoples “are often ignored, diminished, or denied as being relevant or authoritative in answering these questions,” and this situation “has led to important queries about the sources of Canada’s law, as well as its cultural commitments, institutional receptiveness, and interpretive competency” (6). Law is essential to Borrows, but “while it may be challenging to ask deep questions about the underpinnings of Canada’s legal system, we should not regard these inquiries as being without value. In fact, such searching questions can be crucial to our societies if they reveal ways of organizing ourselves that draw us even closer to our collective aspirations” (7). According to Borrows, this book “suggests that we can do a better job of building our country upon our highest ideals,” and that “Canada needs to be constructed on a broader base, recognizing Indigenous legal traditions as giving rise to jurisdictional rights and obligations in our land” (7).
There are different definitions about what constitutes law, and it “can simultaneously produce peace and chaos, depending in whose name it is administered and from whose perspective is is processed” (7). Law includes formal and informal elements and “pivots around deeply complex explicit and implicit ideas and practices related to respect, order, and authority” (7). Legal traditions are cultural phenomena, and a legal tradition “can be distinguished from a state’s legal system if a national system does not explicitly recognize its force” (7-8). A state can have multiple legal traditions, or one legal tradition can overlap between different states, a situation known as legal pluralism (8). Canada is “a legally pluralistic state: civil law, common law, and Indigenous legal traditions organize dispute resolution in our country in different ways” (8). “When recognized, provided with resources, and given jurisdictional space, each legal tradition is applicable in a modern context,” Borrows writes (8). Each of Canada’s three legal traditions points us beyond itself, and each “continues to grow amidst changing circumstances” (8).
Traditions, Borrows continues, “can be positive forces in our communities if they exist as living, contemporary systems that are revised as we learn more about how we should live with one another,” but they can also “be destructive if they become static and frozen in their orientation, interpretation, and application,” if “they are overly romanticized, essentialized, and fossilized in an inflexible framework” (8). For that reason, “[t]he keepers of Canada’s legal traditions must guard against rigidly fundamentalist and oppressive ideas and practices,” because (for example) a “dogmatic intolerance of the civil law or Indigenous legal traditions” on the part of those who practice common aw “could damage these traditions too” (8-9). “We often tend to regard other traditions as potentially threatening, despotic, or severe, if our own ethnocentrism prevents us from seeing problems arising in our own systems,” Borrows writes. “We must ensure that we turn a critical eye on each legal tradition, including our own, to ensure it promotes respect and dignity for those who depend upon it” (9).
Recent social science research has revealed “imbalances between legal traditions in Canadian life” (9). But that research also “exposes scholars’ historic lack of regard for, interest in, knowledge of, and predisposition towards the contemporary nature of Indigenous law throughout the last century” (9). The lack of research on Indigenous legal traditions “means more extended and respectful quantitative and qualitative research is required to evaluate their positive and negative effects and potential,” an analysis that is necessary “to ensure that each of our traditions does not slip into archaic, oppressive fundamentalism” (9). Our legal traditions can be helped to “remain open to new and healthy influences” by regarding them “as being situated within interpretive communities in which those who are affected by them are able to participate in their continued construction” (9-10). “In contrast with the social science research on Indigenous legal traditions, there is a nascent law review literature beginning to explore them from a normative perspective,” Borrows writes, and “[t]his book flows in this tide. It explores the potential scope of Canada’s interpretive communities in relation to its varied legal traditions” (10). “It is my hope that this work represents a further invitation for those interested in this topic to join with me and other willing scholars, practitioners, politicians, policy analysts, Elders, chiefs, and leaders in the identification, recognition, questioning, and further development of our legal traditions,” he continues (10):
In keeping with this approach, this book suggests that Indigenous peoples’ laws hold modern relevance for themselves and for others, and can be developed through contemporary practices. While Indigenous legal traditions have ancient roots, they can also speak to the present and future needs of all Canadians. They should not be just about, or even primarily about, the past. They contain guidance about how to live peacefully in the present world. (10)
At the same time, Indigenous legal traditions are imperfect. “There is no romantic time of pre-contact which was an idyllic existence for Indigenous societies,” Borrows continues, and “[v]iolence, tension, creation, destruction, harmony, and tenuous peace have always been with us in varying degrees” (10-11). Colonization has “compounded the challenges Indigenous peoples have always faced” (11). But his primary point here is that “Indigenous laws incorporate certain deficiencies related to their societies’ imperfections,” just like other legal traditions, and for that reason, “we should not idealize Indigenous laws in our attempts to constructively apply their precepts” (11). Nevertheless, “in dealing with disharmony, Indigenous laws may contain some guidance in curtailing our worst excesses,” and they “are especially relevant when Indigenous peoples are involved” (11). “Disputes within Indigenous communities and with other societies could potentially be reduced if their laws were more widely applied,” he writes (11).
The Supreme Court of Canada has recognized the existence of Indigenous legal traditions, and although “the implications of this recognition have been largely ignored,” “a nascent framework is in place for extending their reach” (11). And, “[t]hough negatively affected by past Canadian actions, Indigenous peoples continue to experience the operation of their legal traditions in such diverse fields as, inter alia, family life, land ownership, resource relationships, trade and commerce, and political organization” (11). “Indigenous legal traditions are inextricably intertwined with the present-day Aboriginal customs, practices, and traditions that are now recognized and affirmed in section 35(1) of the Constitution Act, 1982,” Borrows writes. “In this respect, they are also a part of Canadian law” (11).
However, Borrows writes, “[d]espite their potential to answer pressing questions, Indigenous laws have an uncertain status in Canada’s formal legal system” (12). Some commentators argue that Indigenous people had no laws before Settlers arrived in North America; rather than laws, they claim that Indigenous people only had customs, and that “centralized authority and explicit command are necessary for a legal system to exist” (12). For Borrows, such views “potentially replicate troubling stereotypes” about Indigenous societies (12). He suggests that “[w]hile some Indigenous law is customary, it can also be positivistic, deliberative, or based on theories of divine or natural law” (12). Even if Indigenous laws were customary, “it is misleading to regard customary laws as holding only moral force” (12). Borrows first encountered such assumptions about Indigenous laws as a student at the University of Toronto, where he was taught that there is a hierarchy of laws, with customary law, the kind Indigenous people were presumed to have, at the bottom (13). Most parliamentarians, lawyers, and judges have not questioned the assumption that Indigenous laws were legally inferior or primitive (13). Canadian law was (and is) thought to have been received from the former imperial powers, Britain and France, and this “doctrine of reception does not incorporate Indigenous peoples’ wisdom and learning to formulate the basic rules of our legal system” (14). The doctrine of reception was central to Borrows’s legal training. However, he “believed ‘reception’ also requires some form of interaction with Indigenous peoples to be a peaceful process” (14). He knew from his own family’s history “that the Crown often sought Indigenous agreement before it settled and started governing its own people in our traditional territories” (14). Where such agreements had not been secured, Borrows “viewed reception as being incomplete, thus requiring future action” (14). Most legal texts, however, proceeded from the myth that “law only arrived in the country with the first colonial legislatures or governors,” a myth that presents practical and theoretical problems: “Colonization is not a strong place to rest the foundation of Canada’s laws. It creates a fiction that continues to erase Indigenous legal systems as a source of law in Canada” (14).
“This fiction lies at the root of conflict between Indigenous peoples and the Crown,” because its Eurocentrism “ignores the prior presence and laws of Indigenous peoples in Canada and disregards them as a potential source of law in the country today” (14). The legal hierarchy Borrows was taught “has generated an incorrect and impoverished view of Canadian law,” which this book sets out to address (15). “My thesis is that Canada cannot presently, historically, legally, or morally claim to be built upon European-derived law alone,” he writes. “In this work I attempt to develop conceptual language to strengthen the law’s foundation and contemporary status in this country” (15). Writing about Canada’s constitutional foundations without considering Indigenous law is a mistake: “You cannot create an accurate description of the law’s foundation in Canada by only dealing with one side of its colonial legal history. When you build a structure on an unstable base, you risk harming all who depend upon it for security and protection” (15). “This book,” he continues, “is about attempting to put Canadian law on a stronger footing. Acknowledging the traditional and contemporary place of Indigenous law in this country—alongside the common law and civil law—is a necessary step in this process,” and “crucial to creating a healthier and more accurate conception of Canada’s broader constitutional order” (15-16). “Judicial opinions based on the supposed ‘cultural inferiority’ of Indigenous peoples have not withstood scrutiny,” he notes, and “[l]egal scholars have also rejected the placement of Indigenous laws on a lower level” (16). However, despite “philosophical and judicial statements rejecting ideologies of Indigenous peoples’ inferiority, the so-called European discovery of Canada continues to provide a troubling justification for the diminishment of Indigenous legal traditions,” which “perpetuates the myth of inferiority” (17). For Borrows, this problem reaches into the claim that underlying title to the land in what is now Canada vested in the Crown (as stated in R. v. Sparrow), a conclusion “drawn despite substantial doubts about the Crown’s claims relative to Indigenous peoples’ lands and governments at the ‘outset’ of their relationship” (17).
Despite rulings such as R. v. Sparrow and R. v. Guerin, which upheld the doctrine of discovery, “it is factually apparent that at Canada’s formation there was no first discovery on the part of the Crown that would justify displacing Indigenous law. Indigenous peoples had already discovered most land within their territories and exercised jurisdiction over it prior to the arrival of Europeans” (17). Any legal consequences flowing from “‘discovery’ . . . should vest in favour of Indigenous peoples, not the Crown” (17). “The doctrine of discovery should only give the Crown the ability to claim exclusive or pre-eminent legal authority in areas that were terra nullius, literally ‘barren and deserted,’” but the territories of Indigenous peoples at the time that the Crown arrived in North America were anything but barren and deserted (17). “Discovery should not be accepted as a basis for diminishing Indigenous law,” because the doctrine of discovery is “‘legally, morally, and factually wrong,’” according to the Royal Commission on Aboriginal Peoples (17). Another, related justification for discounting Indigenous legal traditions which should also be rejected is occupation, the notion that “[o]ccupation by a political grouping on a territorial basis is one reason for recognizing broad legal rights over a territory” (17-18): “if the doctrine of occupation were applied without bias, most people would likely conclude that at Canada’s formation the Crown had not effectively occupied Indigenous lands in this manner such as to justify displacing their laws” (18). “Regrettably, the concept of occupation is often applied in an ethnocentric manner to read Indigenous people out of occupation,” Borrows writes, citing the case of R. v. Marshall; R. v. Bernard as an example (18). “Ethnocentric standards concerning occupation”—such as the claim (from John Locke) that Indigenous people had not worked the soil and were therefore not owners of the land, or (from Blackstone) that Indigenous peoples were not organized in such a way as to claim group occupation—“should be discarded as a basis for diminishing Indigenous law” (18).
Another way “to justify the demotion of Indigenous legal traditions” is “by reference to the passage of time and the growth of the common law and civil law in relation to them” (19). According to Borrows, “this argument is analogous to the property law doctrine of prescription,” which “permits a subsequent claimant to acquire rights if they openly occupy an area over a period of time and the original owner acquiesces to the subsequent presence” (19). However, “Indigenous peoples have not generally acquiesced to the common law’s purported replacement of their laws,” and historically “the relationship of the common law and civil law to Indigenous legal traditions has not been peaceful and unchallenged,” since “Indigenous people shave frequently objected to the common law’s presumptions of complete displacement” (19). “Indigenous activism and opinions have been resolutely turned against the displacement of their cultures, laws, and traditions,” Borrows continues (19). The notion of conquest is related to the idea that “Indigenous legal traditions were minimized through adverse common law and civil law application” (19). However, the belief that “Indigenous laws were displaced through conquest” is “contrary to law”: “Despite conflict between Aboriginal peoples and the Crown in Canada, the country’s legal framework does not treat Indigenous peoples as conquered peoples” (19). The Supreme Court of Canada has said so, and Canadian history does not support a claim about conquest, and so “the doctrine of conquest cannot persuasively be relied upon to argue that Indigenous legal traditions are without force in Canada (20). In addition, “the doctrine of conquest is not a morally sound concept upon which to build our legal system,” because it would “potentially set Indigenous peoples in perpetual opposition to the state” and generate “bitter feelings of resentment towards the country” (20). (As if the behaviour of Settlers has not already created bitter feelings of resentment!) “The application of the doctrine of conquest to Crown-Indigenous relations would be the framework that would most likely create continued conflict and future confrontation,” Borrows writes (20).
“Thus, there are problems with theories of discovery, occupation, prescription, and conquest when considering the place of Indigenous legal traditions in Canada’s legal hierarchy,” Borrows continues. “Fortunately, there is an alternative. We do not have to abandon law to overcome past injustices. In placing our country on firmer footing, we only have to relinquish those interpretations of law that are discriminatory” (20). Developing “at least one strand of Canadian law” could repudiate “these damaging doctrines” (20):
Working out the fuller implications of treaties between Indigenous peoples and the Crown is a way out of the impasse created by the rejection of other legal theories. Treaties have the potential to build Canada on more solid ground. Since First Nations legal traditions were the first laws of our countries and were not extinguished through discovery, occupation, prescription, or conquest, they could be viewed as retaining their force. Furthermore, when treaties are made they can be seen as creating an inter-societal framework in which first laws intermingle with Imperial laws to foster peace and order across communities. (20-21)
According to Borrows, treaties “could allow for the peaceful reception of common law and civil law traditions within Canada” (21). They would make it possible to say that while the Constitution Acts and other imperial legislation partially created Canada, so too did First Nations laws (21). First Nations laws modified the operation and force of imperial law through treaties (21). “The Constitution Acts and First Nations laws continue to construct our countries as they develop through time,” Borrows writes, “but treaties also continue to construct them as new agreements are signed and historic treaties interpreted. Without treaties, the so-called reception of the common law remains an act of forced dispossession” which “is antagonistic to peace, friendship, and respect” (21). “Imperialism wanes when the Constitution Acts are seen as consistent with the preservation of Indigenous legal traditions and the creation of inter-societal norms in their relationship with the common law and civil law,” Borrows argues, and “[w]hen constitutional instruments are regarded as resting upon treaties, then Canadian law is firmly on the path to becoming truly Indigenous—home-grown in its place of application” (21).
Borrows concludes the chapter by stating that “this book will argue that there is a strong case for recognizing Indigenous legal traditions in Canada,” a recognition that “requires the ongoing cultivation of solidarity within, between, and across legal cultures throughout the land” (21). “As such, the common law, civil law, and Indigenous legal traditions must grow beyond their trial roots, even as these roots continue to nourish the country’s ongoing constitution,” he writes. “We must come to see that we are free to modify ourselves and how we are constituted. Our society is not insular, one-dimensional, monocultural, or complete. Relationships can be strengthened as we affirm the overlapping, interacting, and negotiated nature of our traditions through time” (21). One dimension of this “effective constitutionalism” involves “cultivating and refining laws that implement Indigenous peoples own aspirations and perspectives, alongside the common law and civil law, and in harmony with international human rights standards” (21-22). In this way, Indigenous legal traditions “would expand and improve Canada’s legal system and benefit Aboriginal peoples along with our society as a whole” (22).
Borrows’s second chapter, “Sources and Scope of Indigenous Legal Traditions,” begins with the possibility that states can embrace the traditions of all of their peoples to become stronger and more unified. “The blending and/or coexistence of legal traditions is possible,” he writes, noting that Canada is a multi-juridical country since it embraces common law, civil law, and Indigenous legal traditions; even though Indigenous legal traditions are often unrecognized, they “can have great force in people’s lives despite their lack of prominence in broader circles” (23). “Indigenous legal traditions are a reality in Canada and should be more effectively recognized,” despite the “many negative stereotypes in circulation regarding Indigenous law” (23). For Borrows, understanding Indigenous laws can help lead to their recognition. “The underpinnings of Indigenous law are entwined with the social, historical, political, biological, economic, and spiritual circumstances of each group,” he writes, noting that they are also “based on many sources, including sacred teachings, naturalistic observations, positivistic proclamations, deliberative practices, and local and national customs” (23-24). In addition, “Indigenous peoples hold many different views about the character and practice of law” and what gives law “its binding force” (24). “Indigenous legal traditions can be just as varied and diverse as Canada’s other legal traditions, although they are often expressed in their own unique ways,” he continues. “This chapter will explore Indigenous legal traditions by focusing on their varied sources. It is hoped that by categorizing Indigenous laws in this way readers will be better able to grasp their complexity and understand the choices available to Indigenous peoples when they exercise their laws,” as well as allowing others “to see the choices they have in relation to Indigenous law in Canada” (24).
Some Indigenous laws have sacred sources: they come from the Creator, or from creation stories “or revered ancient teachings that have withstood the test of time” (24). “Legal traditions based on spiritual principles form an important part of most every culture’s legal inheritance,” Borrows writes. “While Canada’s legal traditions are becoming increasingly secularized, one cannot deny the role of the metaphysical in our law’s formation. For example, the civil law and the common law have been significantly influenced by ideas about religion. The receipt of evidence and the test for truth often rests on appeals to the divine” (24-25). Canada’s Constitution’s preamble “states that Canada is ‘founded on principles that recognize the supremacy of God’” (qtd. 25). In Indigenous legal traditions, creation stories are often a source of sacred law: “These accounts contain rules and norms that give guidance about how to live with the world and overcome conflict. Their reach can be quite expansive because they contain instructions about how all beings should relate to specific territories” (25). Sometimes these stories are specific to individual territories, and other times they are universal. “Due to their broad reach and revered nature, laws that have sacred aspects at their source may be less flexible than laws flowing from other sources,” Borrows notes. “Similarly, their recognition, enforcement, and implementation can often be regarded as foundational to the operation of other laws” (25).
When Borrows worked with Elders in Saskatchewan, “[t]hey spoke of their treaties as being sacred because they brought Canada into existence within their territories” (25). (How unfortunate for me that Borrows’s 2005 report for this province’s Treaty Commissioner remains unpublished.) When the Elders spoke of the legally binding promises to maintain peace and order in the treaties,
it was clear that they regarded the treaty as flowing from a sacred source. They did not rely on the written text of the treaty to arrive at this conclusion. Because First Nations followed their own legal traditions in creating treaties, their interpretation was that treaties were made with the Creator as well as with the Crown. First Nations felt encouraged in their view by the presence of Christian missionaries during the negotiations. (25-26)
The Elders he worked with told Borrows that it was the Creator’s will that Settlers came to live among them, and that the Creator expected “‘the white man’” to live by the treaty and to revive the treaty relationship with First Nations (qtd. 26). “The laws surrounding Canada’s formation in many treaty territories are profound because they are meant to encourage the spiritual, moral and legal capacities of all the people who would come to live here,” Borrows continues. “The sacred nature of the treaties is one reason why many First Nations would not consider abandoning them despite generations of government neglect. It would be a violation of the Creator’s law, sacred law, to turn away from their promises to him and others in maintaining peace and order throughout the lands on which they lived” (26).
This view “challenges the approach of some critics who may regard Canada’s existence in treaty areas as a transgression of rather than an application of Indigenous law,” Borrows writes (26-27). I am reminded of Leanne Betasamosake Simpson’s argument that the Williams Treaties are instruments of settler colonialism, and that they were “processes designed to clear Michi Saagiig Nishnaabeg bodies from the land to the extreme benefit of settlers” (99). For Borrows, though, “the fact that treaties helped to bring Canada into existence within certain areas should not for that reason alone be regarded as contrary to Indigenous law. Many things, including treaties, can be considered sacred even if they are not given the respect they deserve” (27). Some Indigenous peoples do “regard Canada’s creation as profane,” he continues, such as the Haudenosaunee of the eastern Great Lakes, who “do not regard themselves as participating in the creation of Canada. Instead, they regard their treaties as bringing their Confederacy into an alliance with the Crown” (27). For that reason, “many Haudenosaunee people wold resist being labelled as Canadian citizens because of their distinct status” (27). Another exception is in British Columbia: there, “First Nations . . . would have a hard time accepting claims that Canada was formed through promises to the Creator by reference to their laws,” because “other people moved into their territories and established governments without their formalized participation and legal consent” (27). That kind of settlement could hardly be considered sacred. In addition,
a sacred view of the treaties might also be problematic from a certain government perspective, as demonstrated by arguments often made by government lawyers who give treaties the narrowest possible technical interpretation in order to increase the Crown’s authority relative to the Indians. Some might even view treaties as filled with fraud, duress, and manipulation—or as expedient temporary bargains, designed by the Crown to separate Indians from their lands and resources for the lowest possible price. (27)
However, “there are large areas of the country where treaties between Indigenous peoples and the Crown referenced Indigenous traditions,” and “[f]or people in these spaces, treaties can be regarded as sacred creation stories about Canada’s formation if placed in their best light” (27). For Borrows, though, “treaties an be regarded as a sacred creation story,” and for that reason, “they join other Indigenous laws that flow from sources that are revered or most highly respected” (28).
Another source of Indigenous law is natural law: law developed “from observations of the physical world” (28). Laws derived from the physical world “can be seen to flow from the consequences of creation or the ‘natural’ world or environment. . . . these laws may be regarded as literally being written on the earth” (28-29). It’s important to note, however, that “Indigenous definitions of natural law may at times have a somewhat different emphasis than what is found in many leading natural law theories within Western jurisprudence” (29). “For many Indigenous people, the casebook for learning natural law requires an intimate knowledge of how to read the world; understanding natural law from this point of view does not require an intimate knowledge of how to read legal philosophy,” he continues (29). He notes that his mother is an Elder and that she “studies and interprets nature’s laws for her family’s benefit” (29). “Not all legal traditions within Indigenous societies are immediately state-focused,” he writes. “Authority can be based upon kinship and family networks” (29). His mother’s experiences on the land guide the family’s actions; when they don’t follow her judgements, they often find themselves “in breach of important environmental laws” (29). A public example of law derived from the environment can be found in Delgamuukw v. Attorney General (British Columbia), in which “Gitksan Chiefs from Gitwangak described their relationship to the land in natural law terms”: they used analogies of territories to animals to draw lessons that could “legally regulate behaviour and minimize disputes” (33). While the judge in that case “did not rely upon these accounts to formulate his opinion in the Delgamuukw case,” the Gitksan continue to reference their legal traditions “to regulate and guide their relationships” (35).
Another source of Indigenous law is “processes of persuasion, deliberation, council, and discussion” (35): “While sacred and natural law might sometimes form the backdrop against which debate occurs, the proximate source of most Indigenous law is developed through people talking with one another,” which means “that recognition, enforcement, and implementation make them subject to re-examination and revision through the generations” (35). “Indigenous law is not static and can move with the times,” Borrows writes:
The deliberative nature of many Indigenous laws means they can be continuously updated and remain relevant in the contemporary world. When Indigenous people have to persuade one another within their traditions, they must also do so by reference to the entire body of knowledge to which they have access, which includes ancient and modern understandings of human rights, due process, gender equality, and economic considerations. While contemporary concepts will modify and be modified by very old principles and processes, they will also remain distinct by virtue of their particular cultural-legal contexts. Thus, since deliberative Indigenous laws draw upon historical and current legal ideas, they can also more explicitly take account of (and even incorporate where appropriate) legal standards from other legal systems. They can be harmonized with or distinguished from the laws around them based on what counts as persuasive to the group involved in the debate. (35-36)
“Deliberation aimed at making Indigenous law can occur in formal and informal meetings and gatherings,” Borrows continues, and “in these settings laws can be constructed through highly structured or ad hoc means” (36).
According to Borrows, “[t]he deliberative nature of the Indigenous legal tradition is also a key to resisting fundamentalist or dogmatic legal practices and ideas” (36). He notes that many Indigenous communities face challenges, most of which are the result of colonialism, which “make it difficult for certain communities to administer their legal traditions in healthy ways” (36). “The remedy for this problem lies in helping those communities to heal themselves so that they are in a better position to develop constructive and dynamic laws,” he writes. “Persuasion is most effective when people have confidence in one another’s personal and social integrity; thus, healthier relationships can create stronger legal systems because of the increased social capital upon which they can rely” (36). Social capital, “the resource generated in group relationships,” can “foster trust and goodwill, and can engender mutual obligations necessary for effective group action” (36). As with any society, socio-economic health strengthens the effectiveness of community deliberation, and “[h]ealthy participatory legal processes are an important bulwark against oppressive leadership and overbearingly inflexible laws” (36). However, “Indigenous peoples are very aware of foundational principles of civil, political, social and economic rights and responsibilities upon which legal systems rest,” and “they call on these ideas all the time in their fight against colonial state domination” (37). “For Indigenous peoples to be persuasive in declaring and developing law they must incorporate human rights principles in some form within their legal systems,” Borrows continues. “The problem with the Indian Act for many years has been its failure to incorporate human rights standards. While the application of the Canadian Human Rights Act may help to partially remedy this deficiency, a fuller solution would allow Indigenous peoples to develop their own legal traditions consistent with international human rights standards” (37-38). In fact, Borrows states, “Indigenous legal traditions will more likely facilitate dignity and freedom if people inside and outside of our communities drop stereotypes about the timeless, past-tense nature of First Nations life and laws”:
Indigenous traditions are syncretic, and fused with ideas and practices from many sources. They adapt to changing circumstances in accordance with the needs and priorities of their members and in response to external pressures. Tradition is not abandoned as new ways are introduced. In fact, it is renewed as it combines with vibrant healthy influences from other worthy sources. (38)
“Indigenous law must continue to engage in conversations with other legal traditions to stand any chance of continually being embraced by a sufficient number of people within our communities,” Borrows contends (38).
Because Indigenous laws are based on deliberative processes, dissenting viewpoints can be taken into account as laws are formulated, often through the use of circles “to invite participation in developing legal standards. Circles are considered sacred and represent the bringing together of people in an atmosphere of equality, as they do not raise one person above another” (38-39). Borrows cautions that “[r]elationships of power and hierarchy do not necessarily disappear when people make decisions using a circle format,” but “much deliberative Indigenous law development can be conducted through circles—such as talking circles, healing circles, and reconciliation circles—if protective procedures are present” (39). Some Indigenous peoples “prefer gatherings such as feasts and other large public assemblies to encourage discussion and resolution of issues,” particularly in the Pacific northwest, where feast structures “contain elaborate protocols to engage communities in important celebrations and decision-making issues” and use “narrative, dance, music, and gift-giving” to address a variety of disputes, including issues related to property law, family law, commercial disputes, and criminal law (40-41). “There is tremendous potential for the continued operation and development of feasting structures and other large gatherings to develop law through the exercise of Indigenous deliberative practices,” he writes (41). But there are other ways of making law. The Haudenosaunee, for instance, use “structured deliberations” to “build and maintain their Great Law of Peace on the consensus and agreement of six different nations” (42). “The reinvigoration of Haudenosaunee law is one of the reasons the Canadian and Ontario governments have had to work differently with the Six Nations community near Brantford, Ontario in recent years,” Borrows suggests, “and their laws’ influence was especially evident in the disputes concerning subdivision land in the Caledonia dispute in 2006-9” (42).
“Today, perhaps the most visible example of Indigenous legal tradition developed through deliberation and persuasive debate occurs in band council settings,” Borrows writes. “Although the full expression of their laws is constrained by the harsh overlay of non-Indigenous rules under the Indian Act, bands often, though sometimes inconsistently, use traditional legal teachings to conduct their business and regulate their communities” (42). The Indian Act’s strictures “unnecessarily restrict and occupy jurisdictional space and thus hinder healthier law-making procedures and patterns,” and therefore Indigenous law-making is “a poor reflection of what would be possible if this restrictive legislation were repealed” (42-43). Borrows notes that “band councils cannot properly claim to administer Indigenous legal traditions . . . because they are a creation of the Canadian government and therefore only function as a non-Indigenous law-making body,” but he states that “it must also be acknowledged that many continue to be recreated through community participation” (43). Some elected chiefs and councillors do “reference their own First Nation’s legal values in debating and making decisions,” and “many so-called bands pre-existed the Indian Act and find their inherent governmental power in their pre-Confederation authority” (43). “Thus, some band councils are well situated to apply Indigenous legal traditions and have a long history of implementing their own community’s procedures and principles in their decision-making, despite the Indian Act’s strictures,” Borrows writes. “Other band councils, such as those found on the Six Nations reserve in Ontario, have very little legitimacy in administering Indigenous legal traditions because the government’s imposition of the band council has never been broadly accepted by their community” (43). Because the Indian Act allows First Nations “to organize their affairs in accordance with their own customs,” it can be argued that, “rather than extinguishing Indian governance, the Indian Act could be interpreted as explicitly recognizing and affirming pre-existing law-making powers” (43). Nevertheless, “further steps should be taken to remove First Nations from the Indian Act’s suffocating embrace. Operating as a custom band under the Indian Act does not adequately facilitate the growth and development of Indigenous law because the surrounding legislative framework largely assumes a relatively low level of decision-making ability and authority” (43-44). Still, band councils “are a rich source of Indigenous law, despite the problems that exist” (44).
These examples show “that many Indigenous legal traditions develop in a deliberative fashion, through councils, circles, feasts, and other informal and formal meetings and gatherings” (44). Many Indigenous societies are “radically egalitarian,” enabling everyone “a legal right and practical opportunity to assist in the development of their laws,” while others restrict participation because of rules about status, heredity, or “Canadian legal impediment” (44). One must remember that Canadian legal traditions involve pragmatic limits before criticizing the limits in Indigenous participation in law-making (44). “Canadian legal process may be considered somewhat analogous to the special positions, ceremonies, and hard work required by some Indigenous legal traditions,” Borrows continues (44). In any case, “many criticisms related to the scope of disclosure and participation within Indigenous societies can be successfully addressed if widespread deliberation remains the heart and focus of a community’s legal system” (45). If a community’s legal traditions are “undemocratic and thereby restrictive of deliberation,” he argues, those traditions “should be renounced and discarded,” as has happened in the case of slavery, for instance (45). “Where participation in the creation of Indigenous law is restricted in inappropriate ways, it is usually because some powerful individual or group has used positivistic law to usurp authority from a community,” Borrows states, noting that “one of the most profound sources of restrictions on broader participation within Indigenous legal regimes today is Canadian law itself,” both through the Indian Act and the attitudes of lawyers, judges, and parliamentarians that Indigenous law doesn’t even exist (46).
By positivistic law, Borrows means “the proclamations, rules, regulations, codes, teachings, and axioms that are regarded as binding or regulating people’s behaviour”—legal traditions that have weight “because proclamations are made by a person or group regarded by a sufficient number of people within a community as authoritative” (46-47). Legal positivism is based on command, and in an Indigenous context, “positivistic laws may be formally proclaimed in feast halls, council houses, wampum readings, band council chambers, and other such public settings” (47). “Some positivistic Indigenous legal traditions may once have been explicitly connected to a larger normative system, but the reasons underlying their original adoption might have been deliberately abandoned or forgotten as circumstances change,” so that “laws that once drew their authority from deliberation or creation may now be followed for different reasons—because some group or individual has garnered enough power (through respect or fear) that others will now follow their pronouncements without considering the reasons behind the law’s development” (47). Borrows is concerned about the use of “positivistic law as a source of authority,” both in Indigenous traditions and in civil and common law as well (47-48). He worries that “if a prominent leader or group rules through this form of law for too long, without the restraining influences found in the other sources identified to this point, this could lead to great corruption,” and he hopes that positivistic law “will constantly be tempered by other factors to ensure that those who proclaim law do not become a source of oppression to those who follow them” (48). Borrows suggests that it is rare to see positivistic law operating in Indigenous communities “without other sources of law being studied and followed,” though, and notes that one criticism of Indigenous law is the lack of “a so-called recognizable sovereign who can pronounce laws and command obedience to them” (48).
Positivistic laws are “followed by people with little understanding of why they are binding, beyond their trust in or fear of the individual or group who gave them the rules” (48). “Many societies often obey such laws because they are regarded as necessary to the proper maintenance of order within their jurisdictions,” Borrows writes. “When someone breaks a law, our concern is not usually whether the law-breaker was persuaded at some point to support the law but that they had failed to obey it. When we know someone is flaunting the law, we may not immediately care whether that person sees the law as being in harmony with some broader sacred, natural, or deliberative source” (49). Instead, “most people who witness the disobedience are more concerned about their own safety and self-interest, and with that of their neighbours,” and therefore “they may not immediately be concerned about larger questions of legitimacy surrounding the law” (49). For that reason, “in understanding positivistic law’s legitimacy, it is important to remind ourselves that such power flows from a leader or group’s claim or endowment of reason and responsibility” (49). If that leader or group is abusing their authority, they can be removed “without offending other legal traditions that may flow from deliberation, nature, or the community’s sense of the sacred” (49). “Thus, if an Elder named chief or clan mother suffers from a loss of reputation, people could cease to follow their rules without dire consequences,” Borrows states, although “the consequences of a leader’s loss of reputation may be more complex and the subject of much greater conflict” (50). In fact, “[i]t might be difficult to disentangle a powerful group’s claims to authority from laws flowing from the Creator, nature, or from the functioning of a deliberative council,” and “[t]he challenge of separating political power from legal sources should not be underestimated” (50). Application of the law “tends to be messier in mingling the practice of politics and law,” Borrows admits, and “there is always the danger that changes in leadership or group dynamics may make it more difficult to abandon rules that seem, at first glance, to be tied to a person’s or group’s will-to-power through their proclamations” (50-51). Nevertheless, Borrows contends that these political dynamics should not lead to an overestimation of “the problem of leadership conflict or change within Indigenous legal systems where positivistic law is in force,” since “[t]he availability of appeals to the Creator, the environment, and reasoned consensus or custom greatly assists communities when an individual or group’s proclaimed rules or formerly binding teachings become less compelling for reasons related to their reputations” (51).
Custom, the final source of law Borrows discusses, “is the label that most people would likely give Indigenous law if they were unfamiliar with the complexity of these societies’ social organization,” although non-Indigenous societies rely on customary law as well (51). “Customary law can be defined as those practices developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them,” Borrows explains. “Customary laws are often inductive, meaning that observations of specific behaviour often lead to general conclusions about how to act; as a result, the obligations they produce are regularly implied from a society’s surrounding context” (51). Customary law “rests heavily on an individual’s unspoken agreement about how rights and obligations will be regulated between community members,” and the intuitive nature of this form of law “means that disputes are often regulated through social pressures that distribute incentives and disincentives to act or refrain from acting in certain ways” (51-52). Customary laws are often implicit and initially more difficult to recognize, interpret, or enforce, but this fact doesn’t mean they “should give way to other sources of Indigenous legal tradition” (52). “[I]n its proper context,” customary law “can be very effective in producing strong and healthy community relationships” (52). Indigenous customary law is most strongly recognized in marriage and family relationships in Canada (52). Recent land claims agreements also rely on customary law, as n the Labrador Inuit Land Claims Agreement, which explicitly recognizes that customary law can exist in oral or written traditions, observances, or practices, in the opinions of Elders, or in community consensus (52-55).
In the chapter’s conclusion, Borrows notes that “the distinctions between the different sources of law” he has outlined “can be defined too formally and separate from one another. In the real world, Indigenous legal traditions usually involve the interaction of two or more of the sources” he has described (55). “Indigenous peoples have choices when they turn to their laws for answers,” he stresses. “While complexity and choice might make working with the law appear more complicated, it should also provide greater opportunities for those interested in recognizing, interpreting, enforcing, and implementing these laws” (56):
Understanding that a source of law is natural, deliberative, positivistic, or customary might help those people who think of Indigenous legal traditions as static to see a much greater space for their application and development in modern Canada. If Indigenous legal traditions are going to expand and be a creative source of authority in Canada, we must reject the view that Indigenous law lies at the bottom of the legal hierarch, labelled as simply customary. . . . Indigenous legal traditions can be regarded as living systems of law, open to human choice and agency, within the context of the communities who will use them. (56)
One way Indigenous societies can keep their legal traditions alive “and connected to broader normative bases” is by emphasizing “the oral transmission of their laws” (56). “For many Indigenous societies, the spoken word ensures the law’s vitality because it sustains connections to their community’s underlying cultural foundations,” Borrows writes. “It also ensures that laws remain connected to a living community” (56). The oral transmission of law “is an important protection against narrowing influences because it allows for a stronger weaving of the past and the present” (56). It is “bound up with face-to-face persuasion, reason, the configuration of language, political structures, kinship, clan, economic systems, social relations, intellectual methodologies, morality, ideology, and the physical world,” Borrows continues, factors which “assist powerful individuals and groups in knitting legal memories more tightly in their adherents’ minds, keeping the laws living in places other than dusty old books full of overly technical rules” (57). Oral recitation also “allows issues from non-Indigenous systems to be incorporated with flexibility,” because it leads to Indigenous law becoming “intermixed with ideas from other sources” (57).
“[A]ll of these strands of oral law, whether ancient or more recently incorporated, can be woven together and reinforced by mnemonic devices or other cultural practices, which also encourage broader participation and normative links,” Borrows concludes (57). Memory aids—including “wampum belts, masks, totem poles, medicine bundles, culturally modified trees, birch bark scrolls, petroglyphs, button blankets, land forms, and crests”—can record legal ideas, and those mnemonic devices “can be supplemented by practices which include such complex customs as pre-hearing preparations, ceremonial repetition, the appointment of witnesses, dances, feasts, songs, poems, the use of testing, and the use and importance of place and geographic space” (57). “The existence of these formalities and processes can help to ensure that certain legal traditions are accredited within a community,” Borrows argues, and oral tradition often blends sacred, natural, deliberative, positivistic, and customary sources of law together, keeping “Indigenous legal traditions alive and growing” (58).
In the third chapter, “Indigenous Law Examples,” Borrows describes many systems of Indigenous law within their specific social frameworks. He notes that there are dangers to focusing on specific groups when trying to understand Indigenous law: there is the risk of oversimplifying Indigenous societies “by presenting each group’s laws as completely isolated and self-contained,” and ignoring the fluidity and permeability of both legal traditions and cultures (59). He emphasizes the revisionist character of healthy legal systems, and suggests that “[t]he authenticity of Indigenous law and governance is not measured by how closely they mirror the perceived past, but by how consistent they are with the current ideas of their communities” (59-60). In addition, disagreements over interpretations of law “could be a signal that the tradition is vibrant and strong”: “As long as there is a way to temporarily resolve inconsistencies for the finite moments when decisions actually require deference, legal systems can live with a great deal of variation” (60).
First, Borrows discusses Mi’kmaq legal traditions. “[M]embers of the Mi’kmaq confederacy, or Awitkatultik, see their contemporary territory as being divided into districts or sakamowati,” he writes. The sakamowati exist “to acknowledge family rights to certain hunting grounds and fishing waters,” and decisions made within the sakamowati “are based on what members have learned from other living beings within their territory” (61). “Building upon the earth’s teachings in this manner, the Mi’kmaq people seek to apply natural law to their relationships with others,” he continues (62). Mi’kmaq tradition “aspires to give everyone an opportunity to participate in decision-making (wikamou) during certain seasons,” and periodically the people gather to form a Grand Council, or Santé Mawíomi, where issues are discussed (62). Mi’kmaq laws are flexible and holistic, and they change as circumstances change: “The dynamic nature of Mi’kmaq law means that great care should be taken not to freeze the interpretation or application of these laws in an artificial past” (63). Many Mi’kmaq legal traditions come from the sacred, “from their views of creation and their explanations about their sacred responsibilities in the world” (63). Because everything has a spirit, or mntu, “[r]ocks, plants, insects, birds, and animals have a more central role in Mi’kmaq law”:
The need for respect, demonstrated by an awareness of the natural world’s participation in forming Mi’kmaq life, has deep legal implications for these people. It gives higher priority to stories, dreams, and visions than is the case in the common or civil law. This approach more freely accommodates the protection and facilitation of life forces that we do not fully understand or contain. As such, Mi’kmaq law does not shy away from discussions based on experiences that occur outside linear legal argumentations. (64)
But Mi’kmaq laws “can also embrace ideas based on positivistic processes,” through regular wampum readings, or Inapskuk, for example (64-65). However, wampum belts are often misinterpreted or misunderstood by Canadian courts as faulty history rather than law (65-70). “Just as precedent is measured by the most recent cases, rather than by their first formulation, so Mi’kmaq legal tradition must be considered in its most recent light,” Borrows writes. “It is freely accepted that law as a living, interpretive engagement between the past and the present is a necessary part of other legal traditions. The same acceptance should not be denied to Indigenous legal traditions” (70). “Indigenous legal traditions must be understood in the context of their own interpretive rules, just as common law and civil law are understood in accordance with their own distinctive cultural traditions,” he concludes (72).
Next, Borrows discusses Haudenosaunee legal traditions. “Law lies close to the heart of the Haudenosaunee’s genesis as a unified people,” he writes (72). “Although disrupted by U.S. and Canadian attempts to eradicate this tradition, the Great Law of Peace continues to be the most important legal tradition guiding these communities today” (73). The Great Law of Peace, the Kaianerekowa, “bound the Iroquois nations together into a confederacy of considerable strength,” Borrows continues. “Its narrative and principles brought peace, power, and righteousness to generations of Iroquois people, and continues to be important to Haudenosaunee people today” (73). According to Borrows, “[t]he Great Law of Peace is one of North America’s most recognizable Indigenous constitutions,” and “it’s primary authority continues to reside in its spoken version,” rather than in its numerous written descriptions (73). Borrows briefly tells the story of the Peacemaker and the instructions he gave to chiefs about how to live and how to run their councils (73-75). Like most legal traditions, the symbols the Peacemaker gave to the chiefs “are subject to wide interpretation and reinterpretation because their framing encourages listeners to broadly apply their messages,” and the Great Law “also communicates laws relating to adoption, emigration, individual rights, and international relations” (75). Once the Peacemaker taught the principles of the Great Law of Peace, he left, promising to return (75).
“The Great Law is built on the agreement and creativity of many Haudenosaunee people,” Borrows continues. “Future generations are considered in deliberations under the law, and their anticipated needs were to be a significant part of any resolution” (75). Agreements are reached through unanimity, and any of the Six Nations can request a meeting of the council of the confederacy (75). “The Haudenosaunee developed intricate diplomatic traditions in their relations,” he writes, noting that the agreements they reached “continue to resonate with many Indigenous people today,” such as the Gus Wen Tah, or Two Row Wampum, which was the basis of agreements between the Haudenosaunee and the Dutch, the French, and the English (75-76). Another symbol related to the Gus Wen Tah is the Silver Covenant Chain, which binds nations together without causing them to lose their independence (76). “Those holding the Covenant Chain are responsible for keeping their relationships bright and preventing them from breaking Haudenosaunee law seems to maintain an independence from other legal traditions that prevents its assimilation or integration,” Borrows writes, and this independence means that “the Haudenosaunee are the least likely of any Indigenous group to support or embrace the application of their laws as part of the Canadian legal system,” although “many Haudenosaunee would welcome seeing their legal traditions given greater recognition” (76). Because the Haudenosaunee tend to see themselves as allies of Canada rather than as Canadian citizens, Borrows’s “conclusions about the nature of Canadian multi-juridicalism will likely be rejected by many people of the longhouse. They would not want to see their legal traditions as part of Canada’s Constitution, unless they consented to such an arrangement through a treaty with their confederacy, which is unlikely in the present circumstances” (76-77). However, “many Haudenosaunee would likely accept renewal of the Gus Wen Tah and the Silver Covenant Chain, both of which symbolize their ancient treaty relationship with the Crown and affirm their decision-making powers and distinctiveness,” and “Haudenosaunee law has a continuing and significant influence on how Canadians organize their affairs” (77).
Borrows now turn to Anishinabek legal traditions. “Historically, the Anishinabek lived in communities as clans organized in a loose confederacy, which more recently was called the Council of the Three Fires,” he writes (77). They “often manage their resources through kinship allocations, agreed upon through discussion and consensus,” and “these kin-based allocations have been confirmed, overlain or displaced by band council-sanctioned certificates of possessions under the Indian Act” (77). Clan systems “assist in regulating behaviour and resolving disputes,” and “[p]ersons who are not Anishinabek by birth may be granted citizenship and legal standing to participate in community life through an adopted clan” (77). A person’s clan, or dodem, “creates reciprocal obligations among fellow clan members, thereby establishing a horizontal relationship with different communities and creating allegiances that extend beyond the confines of the home village” (78). Clan obligations help “the Anishinabek allocate resources to their hunting grounds, fishing grounds, village sites, and harvesting/gathering sites,” and “[a] conservation ethic is apparent in resource allocations under Anishinabek practitioners using this system” (78).
According to Borrows,
The Anishinabek people have a number of legal principles that guide their relationship with other living beings in a conservationist mode. For example, humans and others have rights relative to the earth, and they also have duties. Duties or obligations are central to relationships under Anishinabek law. This is demonstrated in formalized patterns of speech. For example, when Anishinabek people historically met, they would first ask one another: “Weanaesh k’dodem?” (“What is your totem?). Once clan and family were determined, people would be asked: “Ahniish aen-anookeeyin?” (“What do you do for a living?”). Both of these questions are related to a person’s responsibility within the community. A person’s dodem indicates more than their lineage: obligations are attached to their clan affiliations. Like a dodem, a person’s anookeewin also connotes ideas of duty and right (daebinaewiziwin). Anishinabek peoples have obligations (daebizitawaugaewin) to their families and community: to support them, to help them prosper, and to exercise their rights to live and work. In an Anishinabek legal context, rights and responsibilities are intertwined. (78-79)
“The Anishinabek have strong legal traditions that convey their duties relative to the world,” Borrows continues, including “stewardship-like concepts (bimeekumaugaewin) and apply to their use of land, plants, and others” (79). “Principles of acknowledgment, accomplishment, accountability, and approbation are embedded in the Anishinabek creation epic and associated stories,” he writes:
Ojibway legal traditions concerning bimeekumaugaewin speak of how the world was created and how beings came to live on the earth. They tell of how they depended on the earth, plants, and animals for their sustenance and survival once they arrived. The Ojibway’s acknowledgment (gaamiinigooyang) of a Creator and an appreciation of their reliance on their relationship to the world comprise the first principle of bimeekumaugaewin within Ojibway societies. (79)
The second principle of bimeekumaugaewin deals with accomplishing “the Creator’s vision in setting life in motion” (79). “The stories convey the manner in which plants, animals, and humans should relate to and respect one another,” Borrows writes. “They obtain important teachings about the preparation necessary for living a good life. They talk of principles that must be followed so that all the orders of creation can live together in peace and friendship” (79-80). The third principle of bimeekumaugaewin is accountability: “As with the pipe, ceremonies are often performed in conjunction with these stories to communicate to the Creator, and to acknowledge before others how one’s duties and responsibilities have been performed. Dancing, feasting, and singing sometimes accompany these rituals as a way to ratify legal relationships” (80). Finally, stories explain “the consequences of living in accordance with, or contrary to, these principles” (80). “The idea of approbation received for proper performance of duty, or disapprobation (tubuhumahgawin) flowing from failure to fulfill a responsibility, complete the Ojibway circle of bimeekumaugaewin,” Borrows continues. “These are the enforcement mechanisms of Anishinabek law” (80).
Legal remedies in Anishinabek law “are not usually punitive,” although “examples can be found in which drastic action had to be taken against individuals to preserve community safety” (81). One was recorded by William Jarvis, Superintendent of Indian Affairs, in 1838. In that incident, a man named Mayamaking began drinking his own blood (despite the availability of other food), tearing off his clothing (despite the winter weather), and eating ice and snow. The community feared he would eat their children, and unanimously agreed that Mayamaking would have to die. His best friend shot him, “‘not wishing any other hand to do it’” (Jarvis qtd. 82). “This real life historical case is an interesting example of Anishinabek law,” Borrows writes. “The community dealt with the issue in accordance with their own legal traditions. The community had no other resources for their protection but themselves, their extended family and friends. They used their law to deal with a pressing issue” (82). When it became clear that the man’s threats “were becoming a matter of life and death,” the community “went to council together rather than take action individually” (82). “This is an important Anishinabek legal principle,” Borrows continues. “Their method of making judgments was a collective, not an indiviualized one. They relied upon one another’s viewpoints. They were deliberative. They clearly felt that this method of deciding was very important because they travelled through heavy snow to meet together” (82). The legal principles that led to the man’s death were focused on defence and compassion, and his death had restorative aspects: “The father received gifts from the community, and the man who killed the son stepped into his role, also performing restitution. Even the man who lost his son seemed to be satisfied with the council’s decision” (82-83). For Borrows, this example shows the differences between Indigenous and non-Indigenous law: “Imagine what our legal systems would be like if judges or lawyers had to take the place of those they prosecute or send to jail” (83).
Of course, today Mayamaking’s mental illness would be handled very differently, but for Borrows, the point is “to focus on the process and principles that guided the actions, rather than on the specific outcome” (83). “Even today,” he writes, “people can still”: “wait, observe, and collect information,” “consult with their friends and neighbours when it is apparent something is wrong,” “help the person who is threatening or causing imminent harm,” remove the individual “so that he or she does not harm others (though, to re-emphasize, the act does not involve what the common law has labelled capital punishment),” “help those who rely on that person by restoring what might be taken from them by the treatment,” and “invite both the community and the individual to participate in the restoration (83). These legal principles “show what can be learned from looking at the past,” Borrows contends, and “Anishinabek peoples will likely find similarity with many of these approaches in their contemporary lives” (83). “For the Anishinabek, windigos come in different forms, even today,” he continues. “There are other harmful forms of cannibalistic consumption that destroy lands and people. The principles that underlie the practice in the Mayakiming case are important for dealing with these problems” (84).
Borrows now discusses Cree legal traditions. The Cree homeland is vast, covering both boreal forest and prairie, and for Borrows, who is only including the Plains Cree, Woods Cree, and Swampy Cree in this discussion, “the diverse ecologies of this terrain influence their laws” (84). Those who keep the law are known, in Cree, as “Onisinweuk,” Borrows writes (84)(probably onisinwayak, in Standard Roman Orthography, although I can’t find that word in the dictionary; oyasiwéwin means law, though). Legal principles are encoded in Cree language, expressing fundamental principles in the words wâhkôhtowin, miyo-wicêhtowin, pâstâhowin, ohcinêwin, and kwayask-itôtamowin, and understanding these words provides a glimpse into Cree legal traditions (84). wâhkôtowin is “the overarching law governing all relations,” and it is said “to flow from the Creator who placed all life on earth” (84). According to Borrows,
A body of stories describes what people have learned from observing the natural world; the stories are used to facilitate order in Cree law. The sun, moon, winds, clouds, rocks, fish, insects, and animals all provide illustrations of wahkohtowin, which the Cree interpret into law. Wahkotowin has implications for individuals, families, governments, and nations. For example, in the family law context, wahkotowin is said to require different levels of conduct: parents are to nurture and care for their child with loyalty and fidelity; brothers and sisters are to live close but separately in an atmosphere of non-interference; cousins and other relatives are to be treated respectfully in a non-coercive manner. (84)
Unrelated people apply the principles of wâhkôhtowin “in accordance with the ideas found in miyo-wicehtowin, pastahowin, ohcinewin, and kwayaskitotamowin” (84).
miyo-wicêhtowin, Borrows writes, “is said to have originated in the laws and relationships that Cree people have with their Creator”: it directs Cree people to behave in a way that is conducive to the creation of good relationships (85). miyo-wicêhtowin “is an important legal principle because it speaks to maintaining peace between people of different places and perspectives,” and the “maintenance of mutual good relationships, through positive support and assistance,” is “often represented by the circle in Cree law” (85):
Circles are considered sacred and represent the bringing together of people. They are meant to remind people of Mother Earth and their journey through life: from the earth, to infant, to child, through adulthood to old age and back to the earth. Cree legal traditions can be conducted in circles, such as talking circles, healing circles, and reconciliation circles. (85)
pâstâhowin and ohcinêwin, on the other hand, are about the consequences of failing to abide by the law:
Pastahowin is used to describe something that goes against natural law. If such an offence occurs, negative consequences will follow, making the concept of ohcinewin relevant. Ohcinewin is part of the concept of pastahowin and means to suffer in retribution for an action against creation. Pastahowin and ohcinewin can apply to any circumstance in which the law is not followed, either through action or omission. (85)
Retributive aspects of Cree law include “meskotsehowin” (redress), “kakweskasowehk” (reproval), “apehowin” (revenge), “naskwawin” (reprisal), “pasastehokowisowin” (retributive justice), “naskwastamasowin apo apehowin” (vengeance), “pasihiwewin” (vindication), “atameyimew” (blame), “sihkiskakewin” (obligation), “masinahikepayowin” (indebtedness), and “tipahikewin” (recompense) (85) (all in quotation marks because I’m not sure of Borrows’s spelling and can’t find any of these words in the dictionary). Examples of pâstâhowin and ohcinêwin can be found in relationships between animals and humans: “Animals are regarded as persons in their own right; the relationship between the Cree and animal-persons is governed by the same legal considerations that govern human relationships” (85). “If animals are not treated appropriately,” Borrows writes, “pastahowin and ohcinewin can result: something bad will happen. Many stories interpret the law relating to animals in these terms” (85-86). Borrows notes that a Cree-speaking judge, Gerald Morin, was appointed to preside over a Cree court in northern Saskatchewan in 2001, but suggests that this court “does not represent anything close fo a fully functioning Cree legal system” and that it “only faintly affirms Cree legal traditions,” since “[t]he substance and procedures of Canadian law continue to contain many cultural incongruities that are considered incompatible with Cree legal traditions” (86).
Borrows turns to Métis law next. He notes that in 1840 the Métis living on the prairies developed buffalo hunting laws to organize that economic and social activity (87). The captain of the hunt could impose penalties if the rules of the hunt were broken (87). However, “this set of laws was not a complete code for the hunt. There were, in addition, significant customary legal principles involving the respectful killing and use of animals. Métis law also extended to trade, family obligations, political organization, and land use” (87). Without the order created by Métis law, “the fur trade would have floundered, and political and economic development on the St Lawrence River and easter Great Lakes would have been severely delayed or restricted” (87). Métis “legal presence” was also instrumental in opening western and northern Canada up for settlement (87-88). According to Borrows, “Métis legal traditions were most prominent when the Dominion Parliament attempted to unilaterally survey the old North-West Territories around the Red River in 1869” (88). Because the Métis did not want to become part of the Dominion without their consent and participation, they prevented surveyors from doing their work, and “[t]his prevented Canada’s expansion into the region and compelled the government of Sir John A. Macdonald to negotiate with them” (88). This situation led to the creation of a Métis Provisional Government, which negotiated an agreement embodied in the 1870 Manitoba Act (88). After the terms of that agreement were broken by Canada, “a group of Métis established a democratically elected government in St Laurent, near Batoche, Saskatchewan,” where Gabriel Dumont and eight councillors “passed rules, patterned after their ancient buffalo hunt laws” (88). Borrows includes a long ist of the laws passed at St. Laurent (89-91), and notes that these laws “have survived in customary form, and still have relevance today” (91). In addition, “Métis legal traditions . . . survive in Canada as positivistic law. In Alberta, Métis people operate a quasi-judicial system to deal with disputes about membership, land dealings, surface rights, and any other matter to which the parties agree” (91). This body, the Métis Settlement Appeal Tribunal, was created in 1990 by provincial legislation, and “[i]t has developed an extensive body of jurisprudence as a living legal tradition” (91). Métis living in other parts of Canada “have also enacted their laws in a contemporary context” (91).
Borrows writes about Carrier legal traditions next. The Carrier people organize themselves in houses, with house groups led by a head chief, subsidiary wing chiefs, and house members; a group of houses constitutes a clan (92). Membership in a house or clan is determined by matrilineal descent (92). “Carrier legal traditions contain principles of societal organization,” Borrows states. “These laws are central to the proper distribution of decision-making power” (92). “An integral part of Carrier legal heritage,” Borrows continues,
is their kungax, or “own spirit power.” Kungax tell of the land’s creation, the people’s earliest history, territorial boundaries, major battles, and the origins of house crests, titles, names, and significant past events. Kungax are often performative, using song and dance to communicate major themes and specific principles. Kungax are first taught to children when they are quite young. As they grow and mature, children are expected to deepen their memory and understanding of the kungax until they can recite them accurately. While every attempt is made to ensure that those with proper authority perform the kungax in official gatherings, parallel or divergent accounts often circulate. (92)
According to Borrows,
Kungax teach specific principles for regulating behaviour as well as outlining remedies for breaches of social order. Several fundamental principles intended to govern individual conduct have been identified within Carrier law. These are respect, responsibility, obligation, compassion, balance, wisdom, caring, sharing, and love. (92)
None of these principles is more important than the others; all are of equal weight. One example of a principle found in a kungax is the obligation to treat animals with respect; if they are not, they will leave Carrier territories or exact retribution (92). “To mark respect for fish, the Carrier enact a ceremony each year to honour the salmon’s return,” Borrows writes. “Honour continues throughout the salmon’s cyclical visits with rules governing its allocation, catch, use, preparation, and disposal” (92). These rules are enforced “by proving commentaries about consequences for mistreatment” (92). For the Carrier, “[f]eelings are an important part of the law; reason is not separated from emotion in making decisions and taking action. Reason and emotion operate together to motivate proper conduct” (93). “The kungax also teach proper rules of respect, love, and obligation towards others,” Borrows writes. “If people are not well treated, they are said to transform into animals and leave their partners” (93).
The kungax provide “a principled context,” but “Carrier people regulate their society through the bah’lats or Potlatch laws” (94). “The bah’lats,” Borrows writes,
are the legal basis for succession and inheritance, territorial laws and resource management, family law (including marriage, divorce and mourning), dispute settlement, village governance, special rules of conduct for women, and principles of justice taught to children. The bah’lahts are administered through head clan and subclan chiefs who determine their questions of Carrier law. Hereditary chiefs receive their authority from matrilineal clan assignments in the bah’lahts, if they live in a way that merits the honour. Wealth, service, generosity, wisdom, respect, family and community support all qualify people for the authority. Without living in accordance with these principles, a person cannot expect to be effective in interpreting and adjudicating disputes. (94)
However, if head chiefs do have the respect of the community, they are “responsible for determining breaches of Carrier law and, in consultation with wing chiefs, adjudicate an appropriate remedy” (94). Remedies “are administered by a clan member known as a ‘whip man’” (94). “Formal business within the bah’lahts takes place in the feast hall,” Borrows notes, and feasts are guided “by a major legal tenet, dinii biits wa aden, or ‘the way the Feast works’” (95). “Practices and principles must be followed when a hereditary chief’s name is being assigned, when law is solidified, when shaming occurs, and when a birth, marriage, or adoption is announced,” he continues. “Precise legal procedures are followed within the feast” (95).Borrows describes those procedures, which include the distribution of eagle down after decisions are made, and the proper calling of witnesses (95-96). Witnesses are important, “because they may be called upon at a future feast to verify past actions” (96). “The recording of the bah’lahts proceedings ensures that the witnesses are specifically prepared to testify in the event of a potential conflict over what has transpired,” Borrows concludes, noting that in this respect, Carrier legal structures are similar to those of other northwest coastal nations, including the Nisga’a, to whose legal traditions he turns next.
The Nisga’a are divided into four clans or pdeek, and historically they were also organized into wilps or house groups, each of which “had its own chiefs, territories, rights, history, stories, songs, dances, and traditions. These customs are handed down through matrilineal succession” (96). “Wilps are matrilineal and matrilocal,” Borrows states. “The highest ranking woman in a wilp is called the sigidimnak’; she makes the final decisions on names and inheritance,” and when she dies, the position is assumed by her oldest sister or daughter (96-97). The highest-ranking man in a wilp, the sim’oogit, is “responsible for passing adaawks and associated prerogatives from one generation to the next,” usually through feasts in which these prerogatives are made public and are validated by other chiefs. “Each wilp has an adaawk that describes how their ancient territories were acquired; they can take the listener back to the beginning of time,” Borrows writes. “The adaawk will also describe the wilp’s ancient migrations, territorial defence,” and the major events of its history (97). “The adaawk records property rights such as fishing sites, hunting territories, and gathering grounds. It also details rights and responsibilities in family law,” he continues. “For example, adaawk convey information about how ancestors were given animals to be used as crests by each wilp and to show them how to live, eat, and prepare food. They also relate details about how these entitlements and obligations should be passed on to the next generation” (97).
“The Nisga’a people remember their adaawk by referring to their ayuukhl,” an “ancient legal code that has guided Nisga’a social, economic, and political relationships” for centuries before Canada proclaimed itself a nation (97). “The ayuukhl, in conjunction with the adaawk, historically governed land ownership, education, succession, citizenship, and the institutions of the chieftain and matriarch,” Borrows writes. “The laws also governed marriage, divorce, war, peace, trading relationships, and restitution, though these laws have been modified in some degree by a recent treaty” (97). Some ayuukhl are related to the Nisga’a origin story and are believed to have been placed “in Ginsk’eexkw by k’amligihahlhaahl who is regarded as the Supreme God,” while other ayuukhl “are founded upon K’amligihahlhaahl’s teachings to Txeemsim, the trickster, who identified central legal tenets for Nisga’a peace and order. His deeds and misdeeds illustrate consequences that can flow from certain behaviours” (98). Still other ayuukhl “seem to come from the direct experience and observation of the people. There are many cases of people being rewarded or punished because of the respect or disrespect they showed in following the ayuukhl” (98). Sanctions and restitution are an important part of the Nisga’a legal tradition, including shaming and public cleansing. “Nisga’a legal traditions, therefore, cover many significant aspects of human behaviour,” Borrows continues. “The ayuukhl and adaawk are an important part of Nisga’a legal traditions because they connect the people to their territories, families, and past. They teach them how to live in relationship with the earth around them” (98). However, Nisga’a laws have been modified by their 1999 treaty with Canada and British Columbia; that agreement brings Nisga’a legal traditions into a contemporary Canadian context (99).
Finally, Borrows discusses Inuit legal traditions. “Among the most important legal terms in Inuit law are maligait, piqujait, and tirigusuusiit,” he writes:
Malagait refers to things that have to be followed. It is a relational term focusing on the results of a request (the obligation to obey). Piqujait deals with things that have to be done. The obligation that is the focus of piqujait is the wish of an authorized person about something that is to be done. Tirigusuusiit refers to things that have to be avoided. If a person transgresses tirigusuusiit, he or she will have to face the consequences of his or her actions. (102)
While these traditions are ancient, they “have the potential to be applied to present-day circumstances” (102). Tirigusuusiit, for instance, “could be used as an Inuit legal device to highlight inappropriate actions,” and while all tirigusuusiit might be followed today, “they could be compared and contrasted with other Canadian legal traditions to create a better future” (102). For instance, “tirigusuusiit requires that campsites be kept clean out of respect for the land and the animals,” suggesting that it is “an important foundational idea for creating environmental and land use planning regimes” (102-03). “There are tirigusuusiit related to visiting peoples in other lands, clothing, hunting, and other life activities,” Borrows continues (103). Another important Inuit legal concept is Inuit Qaujimajatuqangit, which includes unwritten traditional knowledge, family and political structures, education, and even knowledge of weather (103). “It has also been described as a living technology for rationalizing thought and action, organizing tasks, managing resources and family, and seeing society as a coherent whole,” Borrows writes (103). I’m not sure what the Inuit Qaujimajatuqangit might be, but I’m wondering if they are oral narratives. Borrows notes that “the Nunavut territorial government is one of the most important institutions implementing Inuit legal traditions in Canada,” and states that the government “has taken great guidance from Inuit Qaujimajatuqangit to structure its legislative and administrative agenda and actions” (103). There are no political parties, and the cabinet operates by consensus (103). He provides a long list of Inuit legal principles, and suggests that the government of Nunavut “has taken many opportunities to apply these and other Inuit legal traditions to their statutes, regulations, and government procedures” (104).
In his conclusion, Borrows emphasizes his contention that these eight legal traditions require debate, “because such debate cold lead to further clarification and more refined applications of the law at issue. . . . Further discussion and development of these descriptions are essential to ensure that Indigenous legal traditions do not become withdrawn from critical inquiry or become lost in mythologies of the past” (104). Therefore, “it is vitally important that Indigenous laws remain relevant through their continual interaction with the contemporary facts of life” (104). Without such interaction, “they could become detached from the everyday concerns and experiences of Indigenous peoples today” (104). Borrows also asserts that:
significant problems can develop if too much deference is given to how traditions (including common law, civil law, and Indigenous law) were practiced in past eras. While ancient understandings can give significant guidance to present practitioners, problems develop when traditions are held hostage to historical interpretations that do not take into account the modern contexts. In these circumstances, placing too much weight on the “hallowed” nature of traditions can become an obstacle to their present-day applications. If an overexalted view of a tradition is applied, it could limit ordinary people from connecting to it when faced with their messy and often mundane circumstances. Legal traditions must have an air of reality about their present-day applications. People will have trouble making their laws work for them if a hard-edged realism is not combined with the necessary idealism that underlies most legal systems. (105)
For that reason, “traditions should not be frozen in some past-tense state because of misplaced notions of reverence and respect” (105). In fact, those notions “could be exceedingly disrespectful” if they lead to the belief “that one’s legal tradition cannot intermingle with other ideas to provide guidance in circumstances that differ from the past” (105). “Respect should not be equated with non-use,” Borrows argues (105). Nor should traditions become the property of an elite (105). “Resistance to ‘non-approved’ ideas that come from other sources can allow elites to selectively shield themselves from complicated counter-narratives,” he continues. “This can only lead to a narrowing and can threaten a tradition’s relevance in a complicated world” (105). “Legal traditions must be brought out of the past and into the present to increase their scope and vitality,” he writes, a statement he believes is true for common law and civil law as well as Indigenous law (105-06). The remainder of the book, he concludes, is about how laws “might learn from and interact with other approaches to regulation and decision-making” (106). In other words, the rest of the book is an argument in favour of legal hybridity.
Borrows’s fourth chapter looks at what can be learned from the coexistence of civil law and common law in Canada, a phenomenon known as “bijuridicalism” (107). However, that term is not inclusive enough, since “numerous Indigenous legal traditions continue to function in ways that are integral to Canada’s legal system” (107). For that reason, it would be better to think of Canada’s legal system as multi-juridical (107). His intention in this book is “to build on bijuridicalism and take a more pluralistic approach to recognizing and affirming our country’s rich legal inheritance” (107). “In this vein, this chapter will explore how the continued development of Indigenous legal traditions can take guidance from the relationship between the common law and civil law in Canada,” he continues (107). “A more thorough understanding of the development of common and civil law will demonstrate the historically fluid, socially constructed, and culturally contingent nature of legal traditions in Canada,” and it will also provide “an important reminder not to stereotype or overexaggerate the positivistic nature of non-Indigenous legal traditions” (107-08). Without that context, common law and civil law often appear to be natural, and Indigenous law to be an exception to the legal norm (108). Like Indigenous law, common law and civil law “waxed and waned depending on sociocultural factors,” knowing about their conditional development “increases awareness of the need for choice and moral agency in the broader adoption and adaptation of Indigenous legal traditions” (108).
“When comparing Indigenous and Western legal traditions, it is tempting to make broad, nearly irreconcilable distinctions between them because of their different histories, social organization, and values,” Borrows writes (108). That is the reason it’s important to see the unwritten cultural assumptions of those traditions (108). The unwritten constitutional principles behind Canada’s constitution have been recognized by the Supreme Court. “If the similarities between our legal traditions are not appreciated, their differences can give rise to misconceptions and stereotypical ideas about Indigenous legal systems,” Borrows continues (108). Those ideas, such as the notion that Indigenous law is educational in nature, cause problems, “because they neglect the role of civil and common law as cultural mediums that educate, communicate, and socialize” (109). “It is too easy to detach the civil and common law from their cultural contexts and this must be avoided,” particularly since the cultural components of common law and civil law “seem almost invisible precisely because they correspond with the values of a wide portion of society” (109). Neither common law nor civil law is removed from society: “The development of the civil and common law flows from, and is embedded in, the cultures of specific groups of Canadians” (109).
First, Borrows discusses the civil law tradition, which begins with Roman law and then spread around the world in codified and uncodified forms (109). “Civil law is a highly structured tradition; it is based on broad declarations of general principles that provide guidance to its adherents,” he notes (109). It first arrived in North America in New France, because King Louis XIV decreed that the laws that governed the colony would be the same as those that governed the Île de France, the region around Paris (109-10). That kind of centralized transplantation of laws from one part of the world to another “is a feature of principle-based laws” (110). The laws of New France were hierarchical, with “royal ordinances, edicts, and decisions from the Conseil Souverain (Sovereign Council) proclaiming the laws by which people would live” (110). However, there was some recognition of the need for law to reflect local values, and so the code was changed several times “to accommodate the particular cultural circumstances of New France” (110). After the British conquest in 1763, civil law in New France was abolished, but it continued to exist in practice, and therefore it was reinstated by the 1774 Quebec Act (110). Since then, civil law has survived in Canada: “Civil law remains a powerful legal tradition in Canada because of its historical use and its relationship to the society and culture in which it is applicable” (111).
Common law began to be practiced in Canada about the same time as civil law, Borrows continues (I would’ve thought it started later). “Those who settled the land outside Quebec brought a cultural preference for this legal tradition and made a conscious choice to adopt this system,” he writes. “Much like some Indigenous legal traditions, common law has a strong customary law component” (111). In other words, its origins “are not grounded in any text” (111). Common law “grew out of a society in which a bewildering diversity of courts, from a broad array of cultures, enforced a wide variety of laws” (111). It was born “when the use of writs expanded at the expense of these other legal jurisdictions” (112). Those writes were “‘forms of action’” that “were the procedural devices used by courts to give expression to the theories of liability recognized by common law,” and the uniformity writs provided “allowed for the more centralized control of the entire common law structure, and the sovereignty of the Crown expanded as the jurisdiction of common law became more widespread” (112). Common law first appeared in Prince Edward Island, New Brunswick, and Nova Scotia after the expulsion of the Acadians in 1756, and it expanded into other British colonies (and Canadian provinces) afterwards. “Of course, many Indigenous people wonder how these colonies came to be viewed almost exclusively as common law jurisdictions when Indigenous legal traditions continued to apply in all of them,” Borrows writes. “Nevertheless, the common law tradition in contemporary Canada operates through stare decisis and a hierarchy of courts. Stare decisis is the principle by which decisions in previous cases are applied to current cases that are materially similar,” and the hierarchy of courts refers to the fact that lower court decisions can be appealed to higher courts, whose decisions “are binding on inferior tribunals” (112-13). “The culture of common law is of incremental development on a case-by-case basis,” he continues (113).
The point of these summaries is to demonstrate that “the development of civil and common law traditions is based on specific historical and cultural circumstances,” along with choice and “moral agency” (113). For Borrows, “[c]hoice and agency will be as important to the adoption and continued adaptation of Indigenous legal traditions. Since legal traditions are subject to human intervention, they can change, grow, and develop” (113). Part of that development is the way that these legal traditions have influenced each other. For most of Canada’s history, common law has been dominant, but Borrows says that more recently civil law has become more prominent. “The growth of Indigenous legal traditions may follow the same course if appropriate measures are taken,” he writes (113).
Common law and civil law have interacted with each other, and these interactions “may hold lessons for Indigenous laws’ growth” (114). Civil law “has been inordinately influenced by common law and still maintains its authority,” and the same might apply to “Indigenous traditions influenced by the other legal traditions,” which may “maintain their power despite being heavily and inappropriately overshadowed by other legal traditions in the courts, parliament, and provincial legislatures” (114). For years, courts, Parliament, and legislatures outside Quebec paid scant attention to civil law, and during that time, “civil law did not enjoy the same weight as common law in the Supreme Court of Canada” and it seemed in danger of assimilation (114). There was a lack of reciprocity between the two systems—a failure to understand that “the Civil Code was a founding document of Quebec’s legal system” (114)—and this situation left many worried about “the continued vitality of civil law tradition” (114). However, things have changed, particularly after the Supreme Court of Canada replaced the Privy Council in the U.K. as the country’s highest court. Despite the dominance of common law, however, “civil law has at times affected common law,” and Borrows cites several examples “in which the Supreme Court has referred to civil law in common law decisions” (114). “The dialogue between these two legal traditions has proved beneficial,” he writes. “Greater reciprocity has facilitated access to a richer body of laws with which to answer legal questions” (115). Each tradition, then, influences the other in Canada (115). That mutual influence has worried some lawyers, who were concerned with the purity or authenticity of civil law. “This approach fails to recognize that the integrity of a legal system is not solely dependent on its relative isolation, internal logic, or doctrinal purity,” Borrows writes. “Integrity also depends upon the system’s recognition, from within and by others. Recognition secures a jurisdictional space for its operation that encourages the respect of the public and facilitates access to resources” (116). When legal systems are recognized as valid, “they are much freer to interact with other systems without fear of assimilation” (116). The broad recognition of civil law was a factor in its survival. “Once the courts and Parliament acknowledged the authority and scope of civil law, it became easier for its influence to grow,” Borrows continues. “Because it has been more firmly recognized by Canada’s dominant legal institutions, civil law ahs been revitalized” (116).
According to Borrows, Indigenous law could benefit from a similar process. Indigenous legal traditions “could grow stronger through greater recognition by the courts and Parliament,” and “Indigenous legal practitioners might consider the civil law experience and identify potential dangers that could develop from an exclusively inward-looking approach to tradition” (116). However, “it is important to contemplate the idea that perhaps the formal separation of Quebec as a civil law jurisdiction has been the strongest reason for its growth, more so than the normative strength it acquired from interacting with the common law,” so both separation and harmonization of legal traditions could be important (116). “Greater discussion is needed within Indigenous communities about the benefits and potential problems of trying to purify Indigenous traditions by the removal of the ‘contamination’ from common law and civil law traditions,” Borrows writes. “Those wishing to live solely by their traditions could usefully ponder whether disproportionately negative effects flow from attempts to completely isolate themselves from surrounding relationships” (116-17). “There are compelling arguments that Indigenous traditions could be strengthened by their separation from and interaction with the principles and approaches that are found in Canada’s other legal traditions,” he continues (117). Also, it’s possible that the history of civil law may not be the best guide:
Indigenous traditions are somewhat different from Canada’s other legal systems. Indigenous peoples are a much smaller proportion of the population than those living under civil law in the province of Quebec. These smaller numbers might give less political weight to the recognition of Indigenous legal traditions nationally. Furthermore, the Quebec government (which protects property and civil rights through civil law), has specific protections in the Canadian Constitution, whereas Indigenous governance may not have the same status. It may be implicitly protected under section 35(1) of the Constitution Act, 1982; but, so far, this recognition has been less than optimal. Additionally, the fact that civil law and common law both stem from European cultures may make their harmonization easier than would be the case with the interface of Indigenous and non-Indigenous legal traditions. (117)
These differences must not be used as an excuse to avoid potential recognition, Borrows continues, and Indigenous traditions must not be subordinated to European ones “on disguised grounds that they are somehow less civilized” (17). Also, international legal systems favour common law and civil law. Therefore, one must be cautious in using the history of civil law as a model for what might happen to Indigenous law. And, finally, “civil law is limited to matters of private law, whereas Indigenous legal traditions also deal with aspects of public law” (118). The differences between Indigenous and non-Indigenous law need to be acknowledged, and they need to “form part of any strategy designed to preserve and develop Indigenous legal traditions” (118).
“In order to have the common law, civil law, and Indigenous law work together in a more harmonious way, we will have to find better words, phrases, and frameworks to acknowledge and facilitate their coexistence,” Borrows states. “The search for such congruence will take us deeper into the realm of interpretation, dialogue, and argument” (118). Like all legal traditions, Indigenous legal traditions need to be interpreted—Borrows uses the word “translated” (118)—in order to be understood, although it’s important that such translations not “always flow one way, to the benefit of the dominant systems” (118). Canada’s other legal traditions, like Indigenous laws, are “embedded in a culture of argument,” and “[e]ach contains a degree of ambiguity that requires judgment beyond its initial formulation”: by courts, judges, and lawyers, through case law, and by Parliament and legislatures, which “promulgate administrative regulations to further implement and clarify statutory grants of power” (118), on the one hand, and by other methods of interpretation, on the other. The methods of interpretation proper to Indigenous law are unfamiliar to Canadians, which presents a challenge for Canadian law, “especially when ambiguities exist not only within legal traditions but also between them” (118). For Borrows, “the most important step we can take in developing a culture of argument in relation to the place of Indigenous legal traditions in Canada is to develop a framework that does not subordinate them to the common law and civil law” (119). When Indigenous law (and Indigenous peoples) have equal status, ways to coordinate the three legal systems will be revealed (119). In other words, “Indigenous law will more fully permeate the consciousness of common law and civil law practitioners and theorists when it is regarded as a real source of rights and obligations in our country. The expansion of our conventional conceptions of Canadian law will also require greater participation by Indigenous peoples” (119).
To illustrate this claim, Borrows turns to a Cree story about a meeting between the Creator and the animals, prior to the creation of humans. He suggests that this account “will draw on Cree law to point out the general principles that can help to bridge the ambiguities between the civil/common law and Indigenous legal traditions” (119). The great gift humans will possess, the Creator tells the animals in the story, is the ability to dream, which will make them creative. They will also possess the gift of the knowledge of truth and justice, humans will have to search for that gift, the way they must search for their identity. The Creator asks the animals to help him find a good hiding-place. All of the animals make a suggestion, but none of them are good enough. Finally, the Mole speaks: “‘Put it inside them because then only the wisest and purest of heart will have the courage to look there’” (121). And that’s what the Creator does. Borrows suggests that this account demonstrates “the importance of participation and equality in the interpretation of Indigenous legal traditions,” because all of the animals, the greatest and the least powerful, are able to contribute to the discussion with the Creator, who is put on an equal footing with them (121). “If we apply these principles to Indigenous traditions, we can conclude that powers of interpretation and judgment should not all be vested in legislators or judges,” Borrows writes. “If we extended them to the coexistence of each of Canada’s legal traditions, we would also acknowledge that the common law and civil law should not be the only reference points in the country’s legal lexicon. Those with less formal power in society should also have a role in deciding how law should be interpreted and should apply to them” (121). Decision-making between legal traditions “should not presume a hierarchy that places Indigenous legal traditions lower in force or authority,” and each tradition should be brought into contact with the other on an equal basis (121-22).
Such equality would help to prevent the erosion of Indigenous law, which has two negative effects: it “destabilizes normative order within Indigenous communities,” causing confusion and disrespect for “the law,” which creates “a significant challenge for peace, order, and development” (122), and it “diminishes Canada as a nation,” weakening its culture of law and causing it to lose the wisdom those legal traditions “could provide about how to organize relationships and reduce disputes,” while also causing us to miss “the underlying justice of Canada’s creation and development” (122). “The recognition of Indigenous legal traditions could connect Aboriginal and other Canadians to land in ways not possible under the current administration of common or civil law,” Borrows continues, reminding his readers that there was no discovery by the Crown that could justify extinguishing Indigenous legal jurisdiction, and no conquest that could have extinguished Indigenous peoples’ “jurisdictional rights over their own affairs” (122). “The Crown’s claims of effective occupation and adverse possession over lands where Indigenous peoples still reside are not very persuasive doctrines when they are used to undercut pre-existing and contemporary Indigenous laws,” he writes (122-23). However, “[l]egal certainty is strengthened when Canadian law is built on doctrines that acknowledge the flaws of these other justifications”:
The recognition of Indigenous legal traditions places Canadian law on a firmer foundation because Indigenous law provides ways to allocate or alienate or share land within their communities and with others in ways that are more consistent with the demands of justice. When land and power is transferred in harmony with Indigenous law, all people of Canada can claim a relationship to land and jurisdiction that rests on consent and mutual respect. (123)
Even in parts of Canada where treaties establish a ground for sharing land, the flaws in the ways those treaties were negotiated makes them, at least potentially, doubtful ways to justify the presence of Settlers or their governments here, as Sheldon Krasowski’s book No Surrender: The Land Remains Indigenous, suggests; if Borrows is right, and recognition of Indigenous law would lead to relationships of consent and mutual respect, then such recognition is essential.
Borrows notes that Canada has recognized the “reserved rights” doctrine, which “implies that anything not agreed to or expressed in the treaty remains vested in Indigenous populations, and cannot be claimed by the non-Indigenous governments as a general right that flows from the treaty negotiations,” in relation to Indigenous title (123). “The ‘reserved rights’ doctrine highlights the inherent nature of Aboriginal rights,” he states. “It builds upon the fact that when the Europeans arrived in North America, the Indians were already here, living in organized societies and occupying their lands as they had done for centuries” (123). This, according to Borrows, is the reason treaties are so important to Canada’s legal framework:
They can draw the common law, civil law, and Indigenous legal traditions together. Treaties recognize Indigenous peoples’ right to make decisions in accordance with their laws to share or give land to others. They recognize non-Indigenous peoples’ right to do the same thing, to share and give land in accordance with their legal traditions. Such mutuality should make it obvious that Indigenous peoples are not the only beneficiaries under the treaties. Non-Indigenous peoples also have treaty rights. Both groups are recipients of the promises made in the negotiation process. The mutuality of the treaties is often overlooked because Indigenous peoples are those most often striving to assert their rights. Yet there are a number of potential inheritors of treaty rights other than Indigenous nations, bands, and individuals. The British and Canadian Crown certainly received many benefits from the treaties. Their citizens were able to peacefully settle and develop most parts of the country by consent. In those parts of the country where there are no treaties (such as British Columbia, Quebec, Labrador, and parts of the North), Indigenous consent is now being negotiated. Where there are treaties, Canadians can trace many of their rights in this country to the consent that was granted to the Crown by Indigenous peoples in the treaty process. (123-24)
“Yet the notion that non-Indigenous peoples might trace certain rights to land or governance through the treaties is, for many, still an emergent concept,” Borrows continues. “Because people have not been exposed to Indigenous understandings of law or the treaties, they are only now beginning to consider them in this light” (124). Unlike countries without treaties, where people struggle “to create better regimes without the advantage of shared ideological roots of intercultural understanding and association,” in Canada that understanding and association was, in many places, “created through multi-juridical meetings that mediated differences throughout most of the land,” and Canada continues to be created in this way through contemporary treaty-making (124). Treaties, Borrows states, are living examples of multi-juridicalism, and “Canadians are fortunate to have agreements that provide mutually recognized conventions for the resolution of disputes between peoples that draw on different legal traditions. New policies or norms need not be invented” (124). The treaties “provide a common starting point of poly-juridical connectivity,” he continues. “Much of the world is not founded on such high principles” (124). Canada has much to learn from its bijuridical experience, and “[r]ecognizing and affirming Canada’s legal structures within a framework of multi-juridical diversity is one more step in this learning” (124).
In his fifth chapter, “Recognizing a Multi-Juridical Legal Culture,” Borrows begins by suggesting that “[t]he operation of multiple legal systems is a Canadian tradition, though its full diversity has been largely hidden from the country’s common law and civil law communities” (125). Nevertheless, the country “has strong aspirations towards tolerance and respect for difference,” as shown by, among other things, our federal system of government and the Charter of Rights and Freedoms (125). “Canada’s founders rejected the idea of forced cultural coercion, at least as it related to the most critical challenges they encountered: French and English, juridical, cultural, religious, and linguistic differences,” Borrows writes. “Although this framework was not broadly extended to Indigenous peoples”—well, it wasn’t extended to them at all, was it?—“it is not too late to do so” (125). Borrows suggests that Canada’s constitutional history suggests analogies to this objective. The British North America Act, 1867 was designed to allow “French and English speakers to continue their unique political, religious, cultural, linguistic, and legal traditions within provincial frameworks,” and it enshrined minority educational rights as well (126). While the BNA Act was “an incomplete governance instrument,” it was “nevertheless sufficient to unite disparate peoples” (126). These “historically deep, constitutionally protected rights and traditions should not be ignored,” he continues, because their aim is “to foster unity amidst difference” (126). They have “great potential for application to Indigenous issues”:
Each of Canada’s legal traditions must remain strong to ensure peace, order, and good government. Canadians must therefore strive to develop and extend societal cohesion through common allegiance to Confederation’s historical and legal framework. At the same time, differences in traditions must not be sacrificed to overreaching attempts to enforce civic solidarity. The country’s constitutional goal is to reconcile unity and diversity, to recognize continued interdependence even in the face of a measured independence. Canada’ democracy is fundamentally connected to these substantive goals. (126-27)
For Borrows, the benefits of these constitutional arrangements “should be more widely available to Indigenous peoples” (127).
Borrows’s optimism about Canada isn’t naive. He knows that many people disagree with his argument. Some advocate for enforcing “a greater commonality” and conformity through various means. Others who are “concerned about difference” see the answer in assimilation. “Of course, the question of who should assimilate whom is not easily answered,” he notes. “The normal assumption is that minorities should be assimilated,” but “it is hard to justify why one group should be entitled to dominate and absorb others on solely numeric terms” (127) The melting pot metaphor might be attractive to some, but it “underestimates the inappropriate pressures this can place on individual identities and national development. This has particularly been the case with Indigenous peoples” (127). He notes that assimilation of Indigenous peoples “has been an astonishing failure,” and that “assimilation is the most hated and resisted policy for Indigenous peoples” (127). “Nothing will turn Indigenous peoples from the Canadian state with greater force than policies designed to assimilate them,” he states (127-28). To push strongly for such assimilative policies, he warns, could destroy the country, as the history of secessionist movements in Quebec suggests (128). He further points out that section 35(1) of the 1982 Constitution Act “safeguards Indigenous peoples as one of the country’s founding political and legal groups. The embedding of Indigenous diversity in Canada’s central legal texts provides a sound justification for recognizing their legal traditions” (129). Of course that recognition isn’t keeping the RCMP away from the Wet’suwet’en First Nation, or allowing them to determine whether pipelines will be built across their territory. It’s more than possible to be too sunny about Canada’s laws and Indigenous peoples.
Borrows suggests that recognizing Indigenous legal traditions “alongside other legal orders has a historic precedent in this land,” and that prior to the arrival of Europeans, “a vibrant legal pluralism sometimes developed amongst First Nations,” with treaties, intermarriages, contracts of trade and commerce, and mutual recognition as “legal arrangements that contributed to extended periods of peace and helped to restrain recourse to war when conflict broke out” (129). “When Europeans and others came to North America, they found themselves in this complex socio-legal landscape,” he continues, and although it has not always been acknowledged, “contemporary Canadian law concerning Indigenous peoples partially originates in, and is extracted from, these legal systems” (129). Diplomacy and treaties were important; Borrows gives the 1701 Dish With One Spoon treaty between the Haudenosaunee and Anishinabek as an example. That agreement, which shared resources around the Great Lakes, is still remembered by the two nations today (130). Intermarriage and adoption were important, as were games, contests, dances, and feasts (130-31). Boundaries and neutral zones could be developed to separate nations from each other (131). Blockades could prevent other groups from gaining access to a particular locale (131). “These tools were embedded in a wider framework of law,” Borrows states. “Indigenous peoples’ occupation of areas to which they maintain or claim rights is not merely a modern phenomenon” (131). Finally, war was a last resort, although conflicts tended to be localized and “based on Indigenous justice systems that required a life for a life” (131). The disastrous war between the Haudenosaunee and the Wendat in the 1640s, which led to “the near extermination and brutal dispersion of the Wendat peoples from their traditional territories in southern Ontario,” demonstrate “the extreme consequences of armed confrontation if other forms of conflict resolution break down and the application of law breaks down” (131-32). According to Borrows, “Indigenous peoples have long sought ways to avoid such calamities, thereby placing Indigenous law and diplomacy at the heart of much Indigenous experience with others in North America”(132).
When non-Indigenous peoples arrived in North America, “they encountered peoples with well-developed laws and duties related to land and resource use,” and they adapted themselves to Indigenous protocols, using “many of the same institutions with which Indigenous peoples were familiar: councils, feasts, ceremonies, orations, discussion, treaties, intermarriage, adoption, games, contests, dances, spiritual sharing, boundaries, buffer zones, occupations, and war” (132). Treaties were made between the newcomers and Indigenous peoples, using Indigenous legal traditions (132). “If their rights were not recognized, Indigenous peoples would take direct action and re-occupy areas recently claimed by others,” and they were “willing to enforce their rights to land if necessary” through war (132). The war between Indigenous peoples and Britain that began in June 1763 led to the British recognition of and agreement to preserve Indigenous land and resources through the Royal Proclamation of 1763 and the subsequent Treaty of Niagara of 1764. “The British approach committed the Crown to entering into treaties with Indigenous peoples if their lands were to be occupied by non-Aboriginal people,” Borrows writes. “Indigenous peoples’ actions and perspectives were important to this policy formulation. They persuaded the government to peacefully settle conflicts over land and resources in North America through treaties. The Crown was bound to secure Indigenous consent before occupying Aboriginal lands” (133). Since then, hundreds of treaties and agreements have been made in Canada, “with many of them drawing on some form of Indigenous legal tradition, even in later eras when they enjoyed less political influence” (133). The continuation of treaty rights and obligations today “entrenches the continued existence of Indigenous legal traditions in Canada” (134).
Treaties are not the only way that Indigenous law influenced, and continue to influence, Canada’s Constitution. “From the 1500s onward, a number of European individuals submitted themselves to Indigenous legal orders,” Borrows states: fur traders, for instance (134). In 1867, “the Quebec Superior Court affirmed the existence of Cree law on the prairies and recognized it as part of the common law,” applying a legal doctrine known as “the doctrine of continuity” (134-35). This doctrine recognized “the continuity of Aboriginal customs, laws, and traditions upon the Crown’s assertion of sovereignty,” and the Crown recognized “Aboriginal rights to occupy and use their traditional territories and to conduct civil affairs” (135). Over time, though, “these diverse forms of reconciliation and resistance at least partially founded on Indigenous legal traditions were attenuated,” and interactions between Indigenous and non-Indigenous peoples “became more dependent on non-Aboriginal cultural and legal norms” as non-Indigenous people became stronger and more numerous (135). However, “Indigenous peoples never completely surrendered their approaches to law and conflict resolution,” and Settlers “have never achieved absolute dominance over Indigenous peoples in Canada in these matters” (135). “Indigenous peoples’ agency continues to exist,” Borrows writes. “As such, Indigenous legal perspectives and traditions continue to shape Canadian law by being part of it” (135). Supreme Court decisions—Haida Nation v. British Columbia, R. v. Mitchell—include “strong endorsements of the need to determine, recognize, and respect Aboriginal rights in Canada, and they reveal that Indigenous law is important to this venture” (135-36). For Borrows, “there are sound arguments that Indigenous rights, obligations, and conflict resolution procedures are compatible with the Crown’s assertion of sovereignty” (136). Since their rights were not surrendered by treaties or by “clear and plain government legislation,” Indigenous peoples “believe that their laws coexist with common law and civil law traditions, and that they are a strong part of Canada’s constitutional inheritance” (136).
As the next chapter indicates, there are both challenges and opportunities in recognizing Indigenous law. “One of the first challenges to the recognition and development of Indigenous legal traditions is the fact that law is never as tidy as we would wish,” Borrows writes (137). The law is always open to interpretation (137). While Borrows argues that the law “can accommodate Indigenous legal traditions,” there are contrary arguments (138). It is not possible, he writes,
to definitively declare what “the law” is or should be in the relationship between Canada’s legal traditions. Such answers will always be open for question and reinterpretation; that is the nature of legal reasoning. Therefore, in arguing for a greater respect between traditions, I must at the same moment be open to the view that Indigenous legal traditions do not or should not exist in Canada. (138)
For that reason, “this chapter will consider reasons why we should not recognize Indigenous legal traditions within Canadian law today, although it will be my conclusion that each of these objections can be overcome,” Borrows writes (138). What he’s doing, then, in this chapter is introducing what Gerald Graff and Cathy Birkenstein call a “naysayer” into his text: an opposing argument that will, in the end, strengthen his own position.
The first naysayer is intelligibility: “some people might question the intelligibility of Indigenous law. They may argue that Indigenous legal traditions are not precise enough to affect an individual’s conduct. They may contend that it is not possible to foresee the consequences of inappropriate behaviour” (138-39). For Borrows, this objection needs to be taken seriously. “Since some Indigenous laws are framed as stories, songs, practices, and customs, they may be criticized as being too unintelligible as a prescription of conduct,” and “too-open-ended to function as legal standards” (139). Borrows suggests that there are several approaches to this question. Some Indigenous laws may have to be reframed to make them clearer and easier to understand (139). However, any legal system struggles with intelligibility, and Indigenous legal systems are not an exception to that rule. “There is nothing inherently unintelligible within Indigenous laws but there may be a need to articulate, translate, or reinterpret some of them in particular instances to reduce their vagueness or imprecision,” Borrows suggests (139). In addition, since law is a cultural phenomenon, “what may be unintelligible to those inexperienced with Indigenous culture may be quite intelligible to those familiar with it” (140). For that reason anyone evaluating “the meaning, relevance, and weight of Aboriginal legal traditions must therefore appreciate the potential cultural differences in the implicit meanings behind explicit messages if they are going to draw appropriate inferences and conclusions” (140). “Third, Indigenous peoples might also approach the issue of intelligibility by questioning the detail necessary for a formulation to be ‘prescribed by law,’” a term that suggests that sometimes the law should be left somewhat vague as an aid to flexibility in interpretation (140). I’m not sure I understand this point—I’m not a lawyer—but it seems to suggest that courts need flexibility and discretion in interpreting the law, an issue that the Supreme Court of Canada has dealt with. “If broader Canadian law can describe ‘debatable’ legal standards as intelligible, Indigenous legal traditions should surely be given the same courtesy,” Borrows writes. “Care must be taken to ensure that Indigenous legal traditions are not held to a higher standard of intelligibility than non-Indigenous law” (142).
Intelligibility is related to accessibility, Borrows’s second naysayer. “Laws are accessible when people know where to find them, how to learn them, and who to speak to if they have questions about them,” he states. “If too many people have difficulty understanding Indigenous laws because they are not readily available, steps should be taken to make them more accessible” (142). Indigenous people would benefit from this increased accessibility, as would other Canadians, who “would see that these laws can be learned and applied” and “would develop a greater appreciation for the nature and scope of these laws” (142). Colonialism has alienated Indigenous people “from both broader Canadian society and from their own Indigenous communities,” which “makes questions of accessibility very real” (143). “Such disconnections may make it difficult for an Indigenous legal authority to clearly communicate laws to its citizens,” a problem that “may lead to a lack of information amongst those to whom such laws are meant to apply” (143). “At the same time, accessing Indigenous law is an issue for other Canadians, too,” he suggests. “If the overall population is not able to easily learn about Indigenous law, it will be more difficult for our different legal traditions to coexist” (143). Therefore, increasing the accessibility of Indigenous law is necessary. Indigenous law “could be codified and made available in written form,” and “decisions of Indigenous councils, courts, and traditional gatherings could be broadcast or publicized in a regularized and systematic way” (143). “[E]nhancing both the written and oral distribution of Indigenous laws would make them easier to learn,” but “the way these laws are communicated must be balanced and calibrated to the type of law being described or interpreted” (143). Not all Indigenous laws should be written down; doing so could sometimes deprive those laws of their force, and “[i]n such instances, oral foundations must be maintained” (143). When oral traditions are written down, “it is important that steps be taken to ensure that their flexibility is not lost to preserve greater context” (144). That’s not an impossibility; “Quebec’s Civil Code has maintained an openness and flexibility despite its written nature,” and flexibility can be secured “by making laws for med through oral tradition paramount over written laws,” as in the Labrador Inuit Land Claim Agreement (144). “Indigenous peoples might also decide to make their laws more accessible by creating broader learning opportunities,” something that could be done “through both general and detailed legal education programs which could take many forms: workshops, apprenticeships, classroom learning, written textbooks, public performances, and so on” (144). Law schools could offer courses on Indigenous law, and new law schools focusing on Indigenous law could be created (144). “Indigenous laws also become more accessible when the government recognizes Indigenous law-making powers through treaties,” Borrows suggests, citing the creation of Nunavut as an example (147).
There are dangers in making Indigenous law more accessible, though: “Indigenous peoples have many reasons to distrust the sharing of their ideas with greater numbers of people. Past attempts to communicate their laws to others have generated misunderstandings in some non-Indigenous communities” (148). Those misunderstandings have led to a loss of trust and to Indigenous people being placed in a defensive position, leading “to an inordinate amount of time being spent clarifying or justifying their legal position,” which can be exhausting (148). Indigenous knowledge has also been (and continues to be) appropriated and stolen, Borrows continues, and “[s]ome Indigenous peoples will be very hesitant to share their legal knowledge with people not of their community because of the potential for its inappropriate use. . . . People will not want to share their legal traditions if they believe that any exchange will only lead to appropriation, criticism, and extinguishment” (148-49). In addition, “certain Indigenous legal knowledge can form part of a tradition that should be considered intellectual property,” and such knowledge “cannot be shared without following elaborate protocols that may purposely limit accessibility” (149). “In making Indigenous law more accessible, close attention must be paid to the specific cultural contexts in which it operates, and solutions must be crafted which skilfully address those contexts,” Borrows writes. “Accessibility must be extended in accordance with a respect for the intellectual property of each Indigenous legal tradition” (149).
Equality is Borrows’s third naysayer. “Some might view the recognition of Indigenous legal traditions as creating inappropriate special treatment for Aboriginal people within Canada’s legal system,” he writes (150). In addition, “Indigenous peoples themselves have suffered in precisely such a manner because of attempts to segregate and separate them from the rest of Canada’s population through the Indian Act and other such laws” (150). However, “the Supreme Court of Canada has acknowledged that the recognition of difference can be a mechanism to achieve equality,” Borrows continues. “Differential treatment does not always signal a denial of the equal benefit and protection of the law” (151). It can be argued that difference does not necessarily lead to “concerns about equality, fairness, certainty, and so on” (151). But Borrows is not arguing that recognizing Indigenous legal traditions alongside common law and civil law means a separate legal system for Indigenous peoples. Instead,
[t]he recognition of Indigenous legal traditions alongside common law and common law traditions should be regarded as part of the same system. There is plenty of room for these traditions to interact within one framework It is not segregation to more tightly associate Indigenous legal traditions with Canada’s other tradition. A prominent idea in this book is that the failure to recognize the existence of Indigenous legal traditions as a part of Canadian law is in itself discriminatory. Indigenous peoples have constantly adjusted their laws to take into account the common law or civil law, but Canadian judges and lawmakers have rarely done the same when it comes to Indigenous legal traditions. With one side resisting adjustment to their legal relationships, and thus preventing further harmonization, it might be said that the resistant party is the one who is engaging in discrimination. Equality is not well served by denying Indigenous societies equal participation in the ongoing formulation of Canada’s legal system. (153)
Connecting our legal traditions “does not imply absolute convergence and fusion” between them, and “Indigenous legal traditions should no more be subject to forced assimilation than the common law is to the civil law. Each can operate in conjunction with the other, and be harmonized to some degree” (153).
Also, as a federal system, different provinces and territories have different legal rules, some of which contradict each other; this situation does not lead to inequality. “The law in Canada unites uniformity with diversity,” Borrows writes. “It is appropriate to want the country’s laws (including Indigenous legal traditions) to be interconnected, balanced, and harmonized, and it is inappropriate to regard the law as undifferentiated and insist that exactly the same legal principles should apply to everyone in the same way when to do so would foment inequality” (153). “It is important to judge the recognition and affirmation of Indigenous legal principles by equality standards,” Borrows concludes. “However, it is just as important that equality not be interpreted in a manner which is contrary to Canada’s Charter of Rights and Freedoms as well as international human rights principles” (155). A wider acceptance of “differential Indigenous legal traditions and their existence within a singular framework” would actually promote equality (155). “As long as we do not create distinctions that have as their purpose or effect the idea or practice that Indigenous peoples are inferior or superior to other Canadians, equality need not be sacrificed in our law to recognize Indigenous legal traditions,” he states (155).
Borrows’s fourth naysayer is applicability. To whom would Indigenous laws apply? Where would they apply? “One of the major issues surrounding applicability is that people could be obligated to follow laws over which they have no influence,” which would be undemocratic (155). “Connecting the applicability of law with its administration is one of the reasons for this book,” Borrows argues. “For too long, Indigenous peoples have been expected to follow laws over which they had little influence. As Indigenous legal traditions gain greater recognition throughout the country, Canada’s democratic character is enhanced because Indigenous peoples will secure greater input over the common law and civil law’s reach into their lives” (156). However, while Indigenous peoples are gaining greater participation and recognition, it’s important that “other Canadians . . . not be unduly prejudiced by this development,” and that “the application of Indigenous law does not sever other Canadians[’] democratic relationship to the laws which govern their behaviour” (156). For that reason, “Indigenous peoples must be responsive to broader democratic values,” and “[t]hose who administer the common law and civil law should likewise judge the reach of their laws into Indigenous peoples’ lives by similar standards” (156). Every citizen of a reserve, then, would be obliged to obey Indigenous laws. The question of people without Indian status living on reserves is more complicated. Borrows writes, “it is my contention that First Nations should terminate definitions of citizenship that are based on the Indian Act. It is contrary to Indigenous constitutional values. Citizenship shold be extended more broadly” (157). He argues that First Nations “should not deny people citizenship if they are willing to abide by First Nations citizenship laws and be fully participating members of our communities. This could enable many more people to become dual citizens of a First Nation and of Canada” (157). He quotes the Royal Commission on Aboriginal Peoples: “Aboriginal people are not racial groups; they are organic political and cultural entities” (qtd. 157). “Since Indigenous peoples have historic rules for adopting others into community, they could build upon these principles to grant people citizenship in the present day,” he continues. “The modernization and extension of citizenship to people form all parts of the world is a strong basis upon which to build the applicability of our laws” (158). He notes that “the recent Dogrib and Innu treaties recognize Indigenous peoples’ authority to make their own citizenship decisions, and thus significantly depart from the Indian Act” (158). The Tlicho Constitution states that citizenship is the purview of their government and that the Tlicho assembly can establish criteria for citizenship. Such laws “make room for others who are not defined as ‘Indian’ by the federal government” (158).
“Indigenous groups should therefore loudly and clearly assert that they are not seeking race-based laws,” Borrows continues. “This would help to overcome most problems of applicability of Indigenous legal traditions to those who are permanently living within Indigenous communities” (159). However, non-citizens living on reserves who have no interest in becoming First Nations citizens would still have to abide by that nation’s laws, the way residents of one province have to abide by the laws of another province to which they may travel (159-60). Moreover, applying Indigenous laws to non-Indigenous reserve residents “does not mean non-citizens would lack influence over the recognition of laws,” because “[t]here will be a pervasive persistence of Canada’s other legal traditions in their influence over Indigenous law no matter what we do,” because of “the colonial nature of Canada’s history,” which will remain “even as we try to decolonize our constitutional framework” (160). Borrows hopes that common law and civil law will be strengthened through the adoption of Indigenous legal traditions: “This interdependence should be the nature of legal discourse in a multi-juridical country. In fact, many Indigenous peoples will demand that protections developed through the common law and civil law’s approach to regulation and dispute resolution be integrated into Indigenous law’s application” (160). He hopes that non-Indigenous people do the same thing, “and insist that protections developed from Indigenous law’s insights be embedded within their laws” (160). The challenge, he suggests, “is to ensure that connections between the traditions are positive and constructive within Indigenous communities, rather than negative and destructive as they have been in the past” (160).
If Parliament accepted the scope of Indigenous law on reserves, greater democratic authority would be accorded to the application of such law to Canadian citizens who happen to be on reserves or other recognized Indigenous spaces (160). “This could be done through a constitutional amendment, a national treaty, or a Parliamentary act or statement of policy from the government of the day,” he suggests. “If Canada’s democratically elected officials were to acknowledge the scope of Indigenous law-making authority on reserves, this would ensure that Canadians had a representative voice in the application of First Nations law to non-citizens” (160-61). In addition, “First Nations could also provide non-citizens of surrounding municipalities and provinces opportunities to comment on the development of their laws as they are being drafted,” and formalized mechanisms for such mutual consultations could be developed (161). Policing agreements could ensure that people from one jurisdiction could be detained in another if suspected of criminal activity (161).
For Borrows, “Indigenous laws are best administered within Canada’s constitutional framework on a territorial basis, giving strict heed to its broader democratic basis. On this principle, I would suggest that First Nations citizens and other people who reside on or visit the reserve should be obligated to follow the laws formulated for the reserve” (162). At the same time, “Indigenous peoples could continue to have provincial or federal law apply on their reserves in accordance with currently recognized rules under section 91(24) of the Constitution Act, or section 88 of the Indian Act, which makes all provincial laws or general application extend to Indians” (162). Some First Nations might opt not to develop criminal courts, for instance, due to a lack of capacity or resources (162).
Would Indigenous laws apply to Indigenous people living off reserve? “There are a few issues to sort out in answering this question,” Borrows states. Reserves were taken from traditional territories without consent, “through the blunt force of colonial law” (163). In other cases, as with the Métis and Inuit, no lands were set aside for them (except for Métis settlements in Alberta). “Thus, the severing of Indigenous peoples from their traditional territories without making provision for the extent of prior Indigenous legal relationships on them is something we are still trying to resolve,” he writes. “Indigenous territories must be significantly expanded to address the injustice of past losses at the hands of a voracious colonial state” (163). For that reason, “Indigenous laws must also be used to enlarge the spaces within which Indigenous law operates. We should concede that there is much work ahead to more fully address the bounds in which Indigenous peoples would have recognized jurisdiction in applying their law off reserve” (163). However, he suggests that off reserve, provincial or federal laws “should create the main obligations for Indigenous people and other Canadians, though these obligations will hopefully be influenced by Indigenous legal traditions” (163-64). This position is consistent with his argument that laws are applicable within territories “to ensure the facilitation of a more fully democratic framework in Canada’s legal system” (164). However, this argument does not foreclose the possibility of mutual interaction between legal systems. “For example, Indigenous laws should have direct application off reserve in those cases related to the exercise of Aboriginal or treaty rights that spill over into provincial or federal spheres,” he argues. “Furthermore, Indigenous laws should have an indirect and varying influence off reserve consistent with Canada’s multi-juridical nature, just as the common law and civil law should influence laws on reserve” (164). This approach “attempts to reinforce the territorial nature of law’s application within Canada’s constitutional framework” while it “recognizes the interpenetrating nature of Canada’s legal traditions” (164). For Borrows, “[t]his is the nature of multi-juridicalism” (164). “It is my belief that this approach most appropriately reconciles Canada’s legal traditions, maintains a strong culture of certainty in securing law and order, and enhances the democratic relationship of citizens with their legal system,” he concludes (164-65).
Borrows’s final naysayer is legitimacy, a “catch-all category [that] addresses broader sociopolitical difficulties people might have in accepting Indigenous law” (165). This includes “psychological and emotional objections to recognizing Indigenous legal traditions that must be addressed if Indigenous law is going to be more broadly received” (165). He cites an article by Jennifer Nedelsky called “Embodied Diversity,” in which Nedelsky argues that judgement is formed through intellectual and emotional processes working together (165). “Thus, in being attentive to how people might feel about the ideas developed in this book, readers might want to identify whether they have strong negative or positive feelings that are not easily connected to logical argumentation,” he continues:
The identification of such feelings might reveal further issues that should appropriately defeat or support this book’s thesis. Emotion can be a powerfully positive force if it leads us to identify lucid, cogent, rational arguments concerning a given course of action. I welcome the identification of such issues to the extent that they are based on fair and balanced argumentation. On the other hand, if our feelings cannot find a root or connection to intellectually persuasive justifications for denying or accepting the existence of Indigenous legal traditions, it may be we should harness such emotions in favour of a different approach. (165-66)
Borrows suggests that identifying “some of the negative feelings people have expressed concerning the recognition and growth of Indigenous legal traditions” would be helpful (166):
Some people may fear for their safety if Indigenous peoples exercise greater lawmaking power. They understand that Indigenous people are over-represented in the country’s jails and that Indigenous communities sometimes experience higher levels of interpersonal violence. They may worry that such violence would spill over into other communities if Indigenous peoples are unable to properly administer their law. Both Indigenous people and other Canadians are likely to express this concern. (166)
Others fear that recognizing Indigenous law will cause division and strife. “Some Canadians might feel Indigenous peoples will be entitled to something they are not if Indigenous law grows stronger,” Borrows writes, noting that such feelings “could generate irritation, fear, or bitterness towards Indigenous law” (166). Other negative feelings, including greed, apprehension, discomfort, anxiety, envy, or “paternalistic affection” might cause people—and I think he primarily means Settlers here—to reject the recognition of Indigenous law. “Any strategy to more widely recognize Indigenous law must address these emotional reactions,” he suggests (166).
Others might worry “about the legitimacy of working with Canadian legal systems when these structures have been so disrespectful of Indigenous traditions and ignored or denied their force. They may feel that Indigenous peoples cannot overcome oppression by working with the very instruments that help to create oppression” (167). Borrows cites Audre Lord’s suggestion that “you cannot use the master’s tools to take down the master’s house” (167). However, Borrows contends that few Indigenous peoples want to secede from Canada. That would mean losing parts of their traditional territories, he suggests, as well as “separating themselves from their neighbours, when trade, intermarriage, and environmental independence characterize many relationships” (167). First Nations usually talk about “creating better relations,” not “severing their relations with others” (167). “It may even be contrary to many Indigenous legal systems to take this approach, given the emphasis on peacemaking, harmony, and reconciliation found in many Indigenous laws,” he states (167). In any case, Borrows has never had much use for the “master’s tools” metaphor: “A hammer, saw, and backhoe are instruments of creation and destruction. It is possible to use these tools to undo or renovate the thing that has been created” (167). Moreover, “if we judge reform or political change against the standard of perfection, then any action we take will always fall short of this unrealistic ideal” (167). Nevertheless, “there will be some people who regard the interaction of Indigenous law with other laws as illegitimate,” and this position “may lead them to seek or support Indigenous peoples’ complete separation from Canada’s legal system because they feel that it would not be right to work with a country that has hurt Indigenous people so deeply” (167).
Borrows’s position is a pragmatic one, he states. He acknowledges that recognition of Indigenous law within Canadian law won’t solve every problem. Some of the objections he has listed “all too clearly foreshadow problems that will occur if we do not act in accordance with our highest traditions” (168). Indigenous legal systems could be used “to disrupt our country’s aspirations for unity,” he suggests (168). Some Indigenous legal systems “are and will be badly administered,” which could hurt those subject to them or who live near their jurisdiction, “just as Indigenous peoples have been harmed by Canadian law” (168). Indigenous peoples could gain influence and power at the expense of other groups or individuals, which would cause distress, even if it is just (168). Miscarriages of justice will happen in Indigenous systems of law, generating doubts about the wisdom of his ideas, because “[n]o society is immune from error, miscalculation, vice, corruption, and distortion” (168). “This is the reason all societies, including Indigenous societies, have need of law”:
Law should be one of the tools we use to deal with issues of secession, maladministration, and injustice. Even though grave injustices periodically arise within Canada’s other legal systems, similar injustices may be regarded more severely if Indigenous people create them. It is difficult to prevent Indigenous peoples from being held to a higher standard when they seek to administer their own affairs. (168)
We have seen such higher standards applied to First Nations elected councils, and the same racist attitudes that motivate them would almost certainly appear in relation to the recognition of First Nations legal systems as well.
However, Borrows argues that we should not give these objections “wider scope or weight than they deserve. While our eyes should be wide open to the difficulties that lie before us, we should also be clear about the consequences of not opening our legal system to reflect Indigenous participation, norms, and values” (168). “The recognition of Indigenous legal traditions could extend benefits to Indigenous peoples which others already enjoy, and simultaneously provide greater benefits to all Canadians,” he argues (168). “[W]e must at least ensure we do not base future decisions about Indigenous legal traditions on unexamined feelings that have questionable roots,” he continues. “The Supreme Court of Canada has noted that racism against Aboriginal peoples is a part of the Canadian experience” (169). But, for Borrows, there is a more formidable challenge: “potential feelings of resentment about the injustices” Indigenous peoples “have endured in Canada. Deep and bitter feelings of anger, distrust, and betrayal reside in some Indigenous communities because of the centuries-long denial of their rights and traditions” (169). For that reason,
it would be quite understandable if Indigenous peoples rejected this book’s ideas. Canada’s suppression of Indigenous rights and traditions has gone on for so long that Indigenous peoples might wonder how this book’s arguments could possibly turn the tide. These views might be especially strong if Canada’s past treatment of Indigenous law is denied as being real or relevant in moving forward in our relationships. (169)
The potential objections of Settlers to recognizing Indigenous law, which would be based in racism, are less important to Borrows than the potential objections of Indigenous peoples, which are based in bitter experience. The trauma Indigenous peoples have experienced, he notes, which includes “the suppression of Aboriginal institutions of government, the denial of land, the forced taking of children, the criminalization of economic pursuits, and the negation of the rights of religious freedom, association, due process, and equality” (170), has never “been sufficiently accounted for in our legal system” (170). (Since this book was published prior to the release of the Truth and Reconciliation Commission of Canada’s final report, I wonder if Borrows’s position on this issue has changed.)
In addition, “[t]he Canadian state continues to benefit from Indigenous losses through their possession of Indigenous lands and the exercise of virtually unconstrained legal power over them,” Borrows continues:
The failure to acknowledge and remedy this situation is perhaps the underlying cause of conflict between Indigenous peoples and the Crown in this country. This conflict goes to the heart of why Indigenous legal traditions are not more widely recognized by courts, Parliament, and other Canadians. As such, this conflict reveals the central issue that lies at the foundation of our legal system: what is the meaning and significance of the past as it related to the present configuration of law in Canada today, and who gets to determine the answer to this question in our official legal narratives? (170)
Canadian courts and legislatures control the interpretation of the past through official legal discourse, Borrows points out, and because those institutions “test Indigenous history and law against common law standards of proof,” they also “measure Indigenous societies against non-Aboriginal sociopolitical norms and economic priorities,” in the process ignoring or diminishing “Indigenous legal perspectives” and not giving “sufficient space for the operation of Indigenous legal traditions” (170). In this way, Canadian courts and legislatures have placed themselves in a position where they can control the country’s past—and therefore, Borrows argues, the future as well. This situation is likely to lead to continued conflict unless Indigenous peoples “are not given some measure of control over interpretations of the past” (170). “Since a contributing cause of our problems is the past denial of Indigenous legal traditions, this has prevented them from controlling their own interpretations of how the future should unfold,” he states. “This approach has injured Indigenous societies, and Canada as an entire country. The acknowledgement and remedy for that harm has great significance for how we reconfigure the relationship between our legal traditions in Canada today” (170-71).
Borrows goes on to apply trauma theory (using the work of Judith Herman) to this situation. Her argument that denial or forgetfulness is a typical response by perpetrators to the trauma experienced by victims, he suggests, “helps explain why Indigenous grievances regarding Canadian law can rise to the point of conflict” (172):
There is little awareness in Canada’s official history of the lived experience of trauma by Indigenous peoples and how this continues to consume present generations. There is a tendency to take the side of the Canadian government when viewing Indigenous claims, much as it is often easier to take the side of the perpetrator in other situations of abuse. (172)
“Indigenous peoples often fact situations in which they are told the thing they complain of never happened,” Borrows continues: they never owned the land they are claiming, or are exaggerating or lying, or that they have brought their grievances on themselves, and that in any case “it is time to forget the past and move on,” because “past injustices cannot be cured today” (172-73). “These reactions can cause Indigenous peoples to feel marginalized within Canadian society and turn away from constructive engagement with the state,” he suggests, and this situation might cause them to reject his book’s thesis (173).
What is required, Borrows continues, drawing on Herman’s work, “is a social context that affirms and protects the victim, and reconnects him or her with healthy relationships in the present. Three things are required: action, engagement, and remembering” (173). Such a response could be facilitated “through the recognition and affirmation of Indigenous legal traditions,” because that recognition and affirmation “reconnects Indigenous peoples and other Canadians”:
These interactions have the potential to involve more people in a process of active engagement that acknowledges Indigenous experiences. This can create more respectful spaces where Indigenous peoples can tell their stories and extract meaning from them. In these circumstances, their grievances can be taken more seriously and not shuffled off to places where they have no control over their outcomes. Most Indigenous peoples do not feel it is safe to go to the courts as they are currently constituted. Their testimony and history are subject to discrediting cross-examinations and harsh burdens of proof. Their legal traditions do not form standards for judgment in relation to their testimonies. Furthermore, Indigenous peoples do not find peace or security when raising their issues in the political sphere. They are outnumbered in the political process, and thus votes alone do not carry their concerns into action. In fact, some political parties are regarded as displaying outright hostility to any acknowledgement of Indigenous peoples’ legal rights in Canada. (173)
Indigenous people, Borrows continues, tend to feel the same way about the media, unions, churches, and other social organizations. This situation must change, he writes, “if Indigenous peoples are going to more strongly connect with Canada and overcome acute trauma,” and such a change would require “a sociopolitical context that is more supportive of Indigenous peoples’ perspectives” (173-74). “This is a major reason why I believe we should embrace multi-juridicalism in Canada,” he states. “Indigenous peoples should be able to apply their laws within their own communities and have them influence broader Canadian legal analysis” (174). A wider acceptance of Indigenous legal traditions could set us on a road towards peace (174).
In the chapter’s conclusion, Borrows notes that appeals to reason are unlikely to change anything, and that emotional and psychological aspects of human relationships will affect how his thesis is accepted despite the rationality of his arguments (174). “It is deeply important to our peace and order that we attend to these broader issues in a positive manner, with a constructive approach, devoted to problem-solving and reconciliation,” he writes (174). He recounts an insight a former student offered him. She had interviewed for a clerk’s position at the Supreme Court of Canada, and during that process, she told the interviewing judges that she wanted to work in the field of Aboriginal law (174-75). Each of the judges asked her, “‘Is there any hope?’” (175). “The student reported that she felt the question was heartfelt, honest, sincere, and searching,” Borrows states:
She thought it was posed in the most professional manner and with the utmost respect and dignity. She said she felt their goodness and understood more deeply the decency and honour that these people brought to their office. And yet, at an advanced and highly accomplished stage in their legal careers, an important question for them remained unanswered in relation to Indigenous peoples’ relationship with the Canadian state. (175)
The purpose of this book is “to give reasons why I believe there is hope in our law as it relates to Indigenous peoples,” Borrows continues. “While hope is only one part of the answer to finding our way out of the mess we are in, it is often the part we pay the least attention to in our formal legal circles. This must change” (175). He acknowledges that there are many issues to be resolved if Indigenous and non-Indigenous peoples “are to enjoy the full benefits that a vibrant multi-juridicalism can offer Canadians,” but at the same time, he believes that Canadians “have the means to overcome these challenges if we draw upon one another’s creativity and goodwill in addressing honest questions and in acknowledging our deepest fears. If we can take this path in further refining our legal relationships, there is hope—not just for INdigenous peoples, but for other Canadians as well” (175-76).
Chapter Seven turns to “The Role of Governments and Courts in Entrenching Indigenous Legal Traditions” (177). “How can governments and courts best facilitate the development and extension of Indigenous legal traditions in Canada?” Borrows asks (177). He notes that this book has answered that question in different ways: through “the fuller recognition of treaties (Chapter 1); through an understanding of the various sources of Indigenous law (Chapters 2 and 3); through an understanding of the culturally contingent nature of the authority of the country’s other legal traditions (Chapters 4 and 5); and by explaining that “Indigenous legal traditions could be more fully entrenched if we recognized their intelligibility, enhanced their accessibility, and understood that their implementation does not undermine but strengthens equality rights in our country” (177-78). Chapter 7, he continues, “focuses on the specific role of governments and courts in strengthening legal traditions. These bodies are important in implementing Indigenous law in a Canadian context” (178). Governments formulate and administer laws, but courts interpret and enforce them, and when they function properly, both are essential to communicating about role of law in society (178). However, when governments and courts are unresponsive, when they “do not reflect a people’s obligations or facilitate their participation,” the results can be “[s]ociopolitical chaos and disorder” (178). “With few exceptions, Indigenous peoples in Canada experience these difficulties,” Borrows writes. “They are not permitted to sufficiently control decisions within their own sphere. They rarely see their legal traditions reflected with sufficient strength across the country. Thus, they do not feel the same sense of obligation citizens usually experience when ruled by laws which strengthen social bonds” (178). The result is that they “do not enjoy the degree of peace, order, and security potentially available to them,” and this must change: “Indigenous and other Canadian governments and courts can become a catalyst for constructive change if they appropriately build upon their highest traditions” (178).
If the power of Indigenous legal traditions “is acknowledged by official state and community institutions,” they will “more positively permeate our societies” (178). For that reason, Chapter 7 “examines steps that can be followed by governments and courts to implement Indigenous law,” although Borrows cautions that his focus on “formal state institutions should not cause us to discount the role of non-governmental organizations, families, or individuals in creating, interpreting, and enforcing Indigenous law” (178). “There is a tremendous danger that official state organs can overwhelm other institutions of civil society if they are regarded as exclusive legal agents in Canada,” Borrows contends. “This would be a mistake and would undermine the vitality of Indigenous law” (178-79). In fact, governments should be regarded with suspicion given their ongoing history of dispossessing Indigenous peoples (179). The “broad dispersal and decentralized force” of Indigenous law is one of the reasons it has “survived colonialism’s onslaught”; legal traditions that were “intensely concentrated in highly formal offices” would have been easier to erase (179). “Indigenous law is often at its strongest when Elders, families, house systems, and other bodies have communicated their traditions in more diffuse and centralized ways,” Borrows continues. “This experience teaches us that we must be careful that Indigenous law’s formal implementation by governents and courts does not undercut Indigenous civil society” (179). For this reason, “governments and courts will likely work best for Indigenous peoples when they are strong but limited in their powers and jurisdiction” (179). “At some level, state-like institutions must be restrained because they tend to usurp vital functions that are often best performed by Elders, families, clans, and other bodies within Indigenous societies,” he contends. “Governments and courts should not be trusted with more power than is necessary to create a sphere of recognition and enforcement for underlying community values” (179). Governments and courts, then, “are supplementary and not at the centre of the resurgence of Indigenous law” (179).
Nor should “academic works or other commentaries . . . displace the essential role of individuals, kin, clan, families, and community in making the most important judgments about how Indigenous law is lived” (179-80). Borrows acknowledges that his book is about how and why Indigenous legal traditions should be affirmed, but he argues that “Indigenous peoples will be poorly served if works like this become the standard against which Indigenous legal traditions are ultimately measured. People trained in multi-juridicalism should be somewhat distant from the daily identification, creation, interpretation, and enforcement of Indigenous law in Canada” (180). Lawyers are “poor substitutes for drawing peace and order from the living relationships and teachings found in families and communities,” and the presence of lawyers “may foster an unhealthy reliance on so-called legal experts” which could “fatally frustrate grass-roots community organization and family activism that should essentially drive regulation and dispute resolution within Indigenous communities” (180).
Nevertheless, Borrows suggests that governments, courts, lawyers and academics “can play an important ancillary role in supporting individuals, families, and communities in the preservation and implementation of Indigenous legal traditions” (180). “Because of the strongly hierarchical nature of Canada’s other legal traditions, Indigenous laws could be overlooked and undervalued if they are not championed by more centralized institutions within Aboriginal communities and Canadian society as a whole,” he states:
Indigenous legal traditions will not receive the respect they deserve if governments, courts, lawyers, political scientists, and law professors fail to more fully articulate their place in our country. Effective governance and judicial decision-making thus requires that formal institutions work alongside Indigenous individuals and families to recreate a supportive context for Indigenous law’s implementation. A strong yet limited role for governments, courts, and lawyers can help ensure that Indigenous legal traditions do not get lost in their interactions with the common law and civil law. Governments, courts, and lawyers should therefore help create the conditions for the more explicit implementation of Indigenous legal traditions and community values. Such action could unburden families and communities, thus enabling them to plan their lives according to their own priorities, freed from the Indian Act and other colonial fetters. (180-81)
In the remainder of this chapter, Borrows writes, he will suggest that “both Indigenous and other Canadian governments could enact legislation or undertake similar official acts that recognize and harmonize Indigenous legal traditions with the common law and the civil law,” and that “Indigenous courts, along with federal and provincial courts, could better implement Indigenous law by developing appropriate interpretive mechanisms and ensuring that at least some of those who are appointed to the bench have a knowledge of or receptivity to Indigenous legal traditions” (181). He advocates that Parliament pass “Indigenous law recognition legislation to facilitate the rule of law’s development in Canada,” that that such legislation be developed along with Indigenous peoples (181).
The last point—the need for what Borrows calls “Recognition Acts” to be passed by Indigenous communities—is the subject of the chapter’s next section (181). “Indigenous peoples do not require formal recognition to possess and exercise law,” he states, and the point of Recognition Acts “would be to once more prominently bring Indigenous law to a society’s attention” (181). “Formal recognition would remind Indigenous peoples of the Indigenous source of their rights and obligations,” he continues. “It would also make these facts more widely known to the various constituencies Indigenous governments regularly serve” (181). Formal recognition would identify Indigenous law “as a primary source of regulation, decision-making, and dispute-resolution powers,” and that identification “might even take the form of a constitution for some communities” (181). Indigenous communities might decide to participate in Recognition Acts or create their own constitutions “because they want other governments to understand the basis of their law-making authority,” Borrows continues. “In this light, such acknowledgement could demonstrate to municipal, provincial, and national governments that an Indigenous community has occupied a field of law-making power appropriate to its jurisdiction” (181-82). In addition, “the passage of Recognition Acts by Indigenous communities could provide a basis for subsequently harmonizing their laws with other legal traditions in Canada. There are many valid reasons why Indigenous peoples might want to pass laws recognizing the source and scope of their laws in their territories and beyond” (182). In addition, Indigenous governments might want to include within their Recognition Acts a statement affirming the civil law and/or common law’s “scope of authority” within their territories (182). “As part of this declaration, communities might decide to recognize the Crown’s role as a source for other Canadians to whom they relate,” he suggests. “Some Indigenous governments may even take the step of acknowledging that they have certain obligations to the Crown within their territories and that these obligations have a relationship to their own laws” (182).
Such recognition would be a challenge to Indigenous communities “who have struggled under the weight of colonial oppression,” Borrows acknowledges, and therefore “most communities would feel appropriately justified in choosing to withhold recognition of Canada’s other legal traditions until the Crown takes steps to be more respectful of Indigenous law” (182). At the same time, though, some communities “might appropriately seize the initiative and demonstrate to Canadian governments the generosity of spirit that Recognition Acts could encompass. Indigenous peoples could take the path of justice in their relations with others even in the face of the injustice they continue to experience” (182). Such recognition could be “a generosity of heart that recognizes ‘all our relations,’ a concept which undergirds many Indigenous legal values” (182-83). Borrows notes that those relations now include Settlers (183). “Embracing broader aspects of recognition would demonstrate the interdependence of Canada’s legal traditions,” and it would also “perhaps alleviate fears that the recognition of Indigenous law would threaten other laws that aspire to create peace, order, and good government in the land” (183). It would also enable Indigenous peoples “to explicitly articulate their views about the sources of legal order in Canada,” and that “could be important to subsequent Crown recognition of Indigenous legal traditions,” which “could generate constructive alternatives, building Canada on an even firmer legal foundation” (183). This kind of recognition “would also be a legally accurate gesture” that “could help facilitate a culture of order and respect for people’s entitlements and obligations no matter what the source in their lands might be” (183). In that way, it could “kick start the process of expanding the possibilities for the more formal interaction of laws in Canada” (183). Borrows’s use of the word “recognition” leaves me wondering what Glen Coulthard, whose book Red Skins, White Masks has the subtitle Rejecting the Colonial Politics of Recognition, would have to say about his argument. I wonder if Coulthard addresses Borrows directly, or if he means something different by the word “recognition.” There’s only one way to know, of course: take Coulthard’s book off my bookshelf and read it.
In any case, Borrows contends that Recognition Acts would protect Indigenous law and enable it to meet current community values and needs (184-85). “The most effective types of recognition will abandon traditions that do not agree with contemporary mores,” he writes. “Recognition will be the strongest when it accords with international human rights law and is the contemporary product of the self-determining choice of Indigenous communities” (185). Like other legal traditions, Indigenous law “will be the subject of continual revision in order to ensure compatibility with contemporary communities and consistency with human rights values,” a viewpoint that, he suggests, “Indigenous law Recognition Acts should explicitly reference” (185).
The next section of the chapter focuses on the need for Canadian governments to recognize formally Indigenous law. “In taking such steps, they should be guided by their own constitutional obligations to Indigenous peoples,” he writes, referring to Section 35(1) of the Constitution Act, 1982, which has “significant implications for the Crown’s adknowledgment of Indigenous legal traditions,” because as well as recognizing Aboriginal rights, it also affirms the Crown’s obligations as well (185-86). Borrows’s interpretation of Section 35(1) suggests that it “means that whenever Aboriginal ‘rights’ are invoked, governmental ‘duties’ are summoned,” a reading that “places the Crown more squarely in the picture if Aboriginal rights incorporate Indigenous law” and “appropriately shifts the focus from Aboriginal peoples to the Crown in a more significant way in working out the section’s content, and meaning” (186). He notes that the decision in R. v. Sparrow acknowledged limitations to the Crown’s power, and “[t]hese limitations must be prescribed by law and be consistent with Canada’s legal traditions” (186). Such constraints “are consistent with Canada’s democratic traditions,” because “[t]he Crown’s subjection to the rule of law is at the centre of the nation’s political values” (186). Limits on Crown sovereignty go back to the Magna Carta of 1215 and the Glorious Revolution of 1688, and “[c]onstraints on Crown actions under section 35(1) should be seen as flowing from this same tradition. The recognition of Indigenous law as potentially imposing limitations on the Crown could be viewed as a human rights triumph” (187). Constitutional limitations on the Crown’s power increase freedom, and “section 35(1) falls within this tradition” (187).
“In dealing with Indigenous peoples, Parliament must therefore organize itself in accordance with its constitutional principles to meet its obligations,” Borrows writes. “It would be a serious violation of the country’s highest law if the federal government did not order itself in this way. Governmental actions that do not accord with the Constitution violate our most fundamental tenets” (187-88). Recognizing and affirming Aboriginal rights and properly exercising federal responsibilities towards Indigenous peoples is not optional, he continues (188). Federal, provincial, and territorial governments “must organize themselves in relationship to Indigenous peoples to abide by these higher precepts,” which “will more fully structure our society in accordance with its constitutional order” (188). “Regrettably, this is an area in which Canada has seriously failed to abide by its highest laws,” Borrows states (188). However, “it would not be a completely groundbreaking stretch for governments to pass legislation recognizing the relationship between Canada’s Constitution and Indigenous legal traditions,” he continues, noting that a 1995 policy statement recognized the inherent right of self-government (188). Since self-government involves Indigenous law, this statement alluded to Indigenous legal traditions. Borrows concludes “that Indigenous legal traditions could be considered as existing Aboriginal rights in Canada, recognized and affirmed by section 35(1) of the Constitution Act, 1982. This shows that Canada’s recent past policy holds some promise for the recognition of Indigenous legal traditions, if it could be made more explicit, that is, by the inclusion of specific written provisions” (189). Parliament could pass legislation translating that policy statement into “a legally enforceable legislative instrument”:
Such law could make explicit the relationship of Indigenous law to governance in Canada. In this vein, Parliament could affirm that Indigenous governance includes the right of Indigenous peoples to implement their unique laws in order to continually strengthen their cultures, identities, traditions, languages, and institutions and thereby nurture their special relationships with lands and resources. (189)
This approach would build on the conclusions of the Royal Commission on Aboriginal Peoples (189). “The point is to draft legislation that accords with Canada’s constitutional obligations, that implements Indigenous peoples’ democratic aspirations, and ensures that those who may be vulnerable within Indigenous societies are appropriately served and protected by Indigenous legal traditions as well as by other Canadian laws,” Borrows contends. “To further protect the political integrity of Indigenous communities, Indigenous law recognition legislation should create a framework for Indigenous communities within which to choose whether they want to accept the recognition offered by Parliament” (190). That would ensure that Indigenous peoples are not worse off after such recognition had been enacted (190). Such legislation would not be accepted by communities if it were to offload responsibilities onto Indigenous communities without “an adequate quid pro quo,” nor if it were regarded as an attempt by the government to do anything beyond formally acknowledging “inherent Indigenous legal and governmental powers” (190-91). “The rights recognized must be also regarded as vesting in the proper Indigenous authorities, which is a matter for Indigenous peoples to choose,” he continues (191).
International law contains norms “that recognize the connection between Indigenous governance and the law,” Borrows notes, including the UN Declaration on the Rights of Indigenous Peoples, which “is clear about this relationship and could provide direction to those developing Recognition Legislation” (191-92). Other international legal instruments acknowledge the connection between Indigenous governance and legal traditions, including the International Labour Organization’s 1989 Convention 169 and the Organization of American States’ 1997 Proposed Declaration on the Rights of Indigenous Peoples (192-95). “When international human rights law is added to Canada’s constitutional provisions, a strong argument can be made that the legal basis for the recognition of Indigenous legal traditions already exists,” Borrows argues (195). He suggests that the Final Report of the Royal Commission on Aboriginal Peoples is particularly important in this regard (195-96), although of course that was only a report and not legislation. “Indigenous peoples’ desire for good governance would be facilitated if Indigenous law could structure peoples’ internal community relations, their relations with the Canadian state, as well as Canada’s own internal structures,” he contends, and “[t]he Royal Commission’s observations are an important source of support for these aspirations” (196). Legislation could be built upon those recommendations, and “Aboriginal self-government could be implemented as an inherent right” (196). That form of recognition “would imply that Indigenous legal traditions could be more explicitly proclaimed and practised if the ideas found in this book were more widely accepted” (196).
The Royal Commission on Aboriginal peoples also found “that Indigenous peoples already possessed governance powers in Canada because it found that such powers were never extinguished” (196). That conclusion was supported by Calder v. A.G. (B.C.), in which the court found that Indigenous powers of self-organization pre-existed the arrival of Europeans and “were not voluntarily surrendered when the Crown asserted its own sovereignty in Canada” (196). Indigenous peoples continue to live in organized societies, “governed by ancient and contemporary customs, laws, and traditions that give meaning and purpose to their lives despite the extensive regulation of these powers through instruments such as the Indian Act” (197). However, as R. v. Sparrow points, out, “[t]he regulation of Indigenous law-making power does not extinguish it” (197). Other Supreme Court of Canada decisions affirm the existence of Indigenous rights, including governance powers (197). “An Indigenous society’s legal traditions are inseparable from its governance powers,” Borrows argues. “The ability of Indigenous peoples to express their legal traditions through governance does not depend for its existence on any grant of authority form the executive or legislative bodies in Canada” (197). And, of course, had the Supreme Court of Canada not affirmed the existence of such governance rights, it would be incorrect—a position that Borrows, as a lawyer, doesn’t seem to hold and, frankly, doesn’t have to hold because of decisions that do affirm the existence of those rights. Finally, he states that Indigenous peoples “hold rights under their legal systems,” and an important one of those rights “for the health and vitality of their legal orders is their inherent governmental power” (198). “Canada’s multi-juridical status implies the existence of a multi-jurisdictional political order,” he continues, and Section 35(1) “can facilitate the connection, growth, and development between Indigenous governance and Indigenous legal traditions. The recognition of Indigenous governance within Canada’s Constitution is important because it can help heal the troubled relationship that Indigenous peoples have with the country” (198). Parliament could enact legislation acknowledging that fact (198). In fact, Parliament ought to enact such legislation.
However, Borrows cautions that section 35(1) “must not bear all the weight of reform in constructing recognition legislation,” because “Aboriginal rights as articulated by the courts when interpreting section 35 of the Constitution Act, 1982 can only go so far in building a harmonious nation state” (198). For Borrows, it’s necessary to mobilize broader sociopolitical forces, because “[e]ven within the constitutional sphere, section 35(1) is necessary, but not sufficient, to accomplish legal reform. Other opportunities for reform might be missed, particularly in regard to federalism, if too much reliance is placed on section 35” (198-99). That’s because, according to Borrows, “[s]ection 35 has not been sufficiently directed towards the larger project of nation-building” (199). “To put it bluntly, sections 25 and 35 have become focused on a few specific practices that the courts have decided were integral to Aboriginal peoples prior to the Europeans’ arrival in North America, and those related rights that have not already been extinguished,” he writes. “Furthermore, from an Aboriginal perspective, the provisions in section 35 are increasingly used to justify government infringements of Aboriginal rights” (199). A reliance on section 35(1) cannot be allowed “to sidetrack all Canadians from the more fundamental work to be done to harmonize Indigenous peoples’ relationships with their neighbours” (199). “Canada needs to move beyond narrow interpretations of the constitution relative to Indigenous peoples,” he continues, and Parliament should take a leadership role in this process (199):
Section 35(1) as currently interpreted by the courts does not replicate jurisdictional powers for Aboriginal peoples as found in sections 91 and 92 of the Constitution Act, 1867. Aboriginal peoples do not have an Attorney General to protect their rights. There has been too little constitutional discussion of democracy, self-determination, and the role of Indigenous law as they relate to Aboriginal peoples in Canada. (199)
I was more than a little surprised by these comments. How could the BNA Act give Indigenous peoples greater jurisdictional powers than the 1982 Constitution, given that it allowed for the Indian Act and other legal horrors?
The principles that underlie the ability of provinces to make their own laws “could be applied to Indigenous peoples if Parliament deferred to them in the realm of law and government by passing recognition legislation” (200). Canada’s federal system is “only partially complete in relation to Aboriginal peoples,” and Canada could fill in the caps of our Constitution by distributing appropriate powers to Indigenous governments (200). Borrows argues that “we need to further develop the implications underlying Canada’s constitutional framework in relation to Indigenous peoples. It is consistent with the country’s constitutional ideals to enhance a flexible political federalism that included recognition and cooperation between Indigenous peoples’ legal systems and those of other governments” (200). Canada’s federalism might be more fully developed “if we followed a process similar to that prescribed by section 37 of the Constitution Act, 1982, through which Canada’s first ministers and Aboriginal representatives convened to fill in the meaning of section 35, particularly relative to Indigenous law and governance” (201). That process failed, Borrows concedes, but “it at least put the definition of Aboriginal rights at the centre of political debate” (201). Since then, “the courts have been much too prominent in defining Aboriginal rights, although they have ultimately also provided little guidance on this issue as well” (201). “It is time that Canada’s elected leaders and Indigenous peoples’ chosen representatives did the necessary work in meeting to work out the contours of mutual recognition,” he concludes (201). He’s probably right, but ten years after this book was published, there appears to be little interest in the process he is describing—even with a Prime Minister who claims to be sympathetic to Indigenous peoples.
“After recognition legislation is enacted, other legislative mechanisms should be created to harmonize Canada’s other legal traditions with Indigenous laws,” Borrows writes. “Harmony is value often associated with Indigenous societies. It can be a positive goal to Indigenous-Crown relations as long as it is not coercively applied” (201). Harmony was evoked by the Royal Commission on Aboriginal Peoples, which argued that “‘Canada is a test case for a grand notion—the notion that dissimilar peoples can share lands, resources, power and dreams while respecting and sustaining their differences’” (qtd. 201). But justice must accompany harmony. “Justice can be facilitated and peace thereby promoted through harmonization legislation,” Borrows continues. “If properly applied, harmonization mechanisms could ease communication between Canada’s other legal traditions and reduce conflict or inconsistencies between them” (201-02). Such mechanisms “could address questions about the relationship of Indigenous law to federal statutes and create interpretive principles to ensure Indigenous laws are read in a wide, liberal, and generous manner,” as well as provide ways to make sure that the acknowledgement of those laws “does not inappropriately disrupt settled interests under Canada’s other legal traditions,” and that “Canada’s other legal traditions do not inappropriately unsettle interests developed under Indigenous laws” (202). There are examples of such harmonization mechanisms, such as the 2001 Federal-Law-Civil Law harmonization Act (FLCLHA); Borrows argues that something similar “could be created for Indigenous legal traditions” (202). “Harmonization legislation could ensure that federal law provisions are brought into line with existing Indigenous law provisions acknowledged in the recognition process,” he suggests, thereby promoting “the equivalence of civil law, common law, and Indigenous law as equally authoritative sources of law for property and civil rights in Canada” (203). “Harmonization legislation could be developed jointly with Aboriginal governments and organizations,” Borrows posits, and he goes on to outline the principles that could be contained by the legislation’s preamble (203). There’s no reason such legislation couldn’t be developed, he argues, since “Indigenous legal traditions deserve the same respect that is given to civil law” (204). Other countries have harmonized their Indigenous legal traditions with their non-Indigenous legal traditions, and their examples “could provide appropriate mechanisms to secure Indigenous legal traditions while simultaneously protecting human rights” (204-05).
“The harmonization process would also have to eventually deal with issues of protocol between Indigenous peoples and the Crown,” Borrows writes. “The act should also address the power imbalance that Indigenous peoples would encounter relative to the common law and civil law in the harmonization process” (205). For instance, it could direct decision-makers “to give Indigenous law a large, liberal, and generous interpretation, following the canons of construction developed by courts in dealing with treaties and statutes concerning Indians” (205). It would also have to come up with a process to address issues such as “the role of Elders in harmonization,” “concerns about appropriation and cultural property,” “the impact of colonialism on Indigenous laws,” “the problem of gender stereotyping, discrimination, or imbalance in Canadian and Indigenous laws,” and “the potential harm traditional laws and Canadian laws could cause for the vulnerable within Indigenous communities” (205). It is essential, he reiterates,
that each of Canada’s legal traditions embraces contemporary human rights concerns, including those with a colonial origin that have negatively affected Indigenous peoples. It is also important that human rights concerns do not become an excuse to further colonize Indigenous societies. Human rights can be protected within Indigenous and other Canadian communities without further extending the discriminatory practices and attitudes of earlier imperial policies. This is best done by Indigenous peoples and non-Indigenous Canadians reformulating their traditions in a manner that respectfully integrates traditional and contemporary normative values, and also protects and harmonizes their laws with international human rights standards. (205)
“The more comprehensive recognition of Indigenous legal traditions in Canada through recognition and harmonization legislation could give Canadians significant expertise in working with and assisting other countries that have mixed legal systems (civil, common, and Indigenous),” Borrows continues. “This expertise in multi-juridicalism would allow Canadians to play an even greater role on the world stage” (205-06). It would also “provide an even greater source of answers to pressing questions faced by Canadians,” and their legislatures would better be able “to reflect the normative values of an increasingly diverse population” (206).
In the chapter’s next section, Borrows turns to the role of the courts in recognizing and harmonizing Indigenous law. Along with governments, “Indigenous dispute resolution bodies and Canadian courts could also act to facilitate healthier interactions,” he writes. “Because courts often stand on a society’s front lines in creating and interpreting law, they are important institutions in the recognition and harmonization of Indigenous law with other legal traditions” (206). Courts are special kinds of public assemblies, because they consider “arguments about the resolution of disputes in accordance with a formalized set of procedures” (206). “Each of Canada’s legal traditions convenes special assemblies to resolve disputes in different ways,” he notes (206). Common law assemblies run on an adversarial model, presenting a clash of opinions in order to establish the “truth” of a matter, with judges acting as neutral arbiters between the disputing parties (206). “As such, they can be at the mercy of parties in the gathering and receipt of evidence which forms the factual matrix of a dispute,” he suggests (206). In civil law, “courts are usually inquisitorial,” which means that “judges take a more active role in supervising the compilation of evidence and in testing that evidence before the parties to the dispute” (206-07). Indigenous dispute-resolution assemblies, in contrast, can take various forms, “neither wholly adversarial nor inquisitorial” (207). “There are as many different dispute resolution procedures and styles as there are Indigenous groups,” he states, and therefore, “Indigenous dispute resolution is in some ways distinct from the common law and civil law systems” (207). Nevertheless, Indigenous societies have dispute-resolution mechanisms, including more recently developed models “that have drawn on adversarial or inquisitorial models of the common law or civil law in resolving disputes” (207).
“There is much that can be done by Indigenous peoples to further develop mechanisms for communication between their laws and the laws of others,” Borrows contends:
Indigenous governments could further encourage and empower dispute resolution institutions to take steps down this path. Indigenous dispute resolution bodies could exercise primary legal jurisdiction over matters that are both internal to their communities and crucial to their relationship with other peoples. They could articulate principles about how these matters relate to the common law and civil law. Indigenous governments and courts could affirm their powers in the manner most consistent with their diverse legal traditions. (207)
All of this is important, he suggests, “because Indigenous law must embrace a community’s deeper normative values” (207). It must also be seen to be “a fair and effective force in facilitating peace and order within Indigenous communities, so that it will be easier to convince others to eventually harmonize Indigenous and non-Indigenous laws” (208). “If Indigenous laws are not fair,” he states, “they should be challenged and changed,” but if they are fair, “they must be recognized and connected to our deepest legal structures” (208). Indigenous dispute resolution bodies might not be created by the Constitution, but they enjoy its protection, and therefore they must meet standards of participation and accountability in order to be accorded the same legitimacy that common law and civil law courts have (208). “This will help facilitate the harmonization process,” he suggests (208).
“The further development of Indigenous dispute resolution is necessary because Canada’s other legal traditions do not sufficiently engage Indigenous values and thus do not appropriately encourage Indigenous participation,” Borrows continues. “This problem would be corrected by Indigenous adjudicative institutions applying Indigenous principles” (208). The adjudicative institutions that currently exist “too often frustrate the participation of Indigenous people since those structures falsely rest on public institutions such as the Indian Act that are constitutionally questionable,” and this result “erodes Indigenous peoples’ confidence in the rule of law in Canada” (208). The Supreme Court has said that it will not tolerate “a legal vacuum” in any part of the country, but “[w]hen Indigenous laws are not recognized and harmonized, Indigenous peoples experience conditions that resemble a legal vacuum”: chaos exists because legal systems are ineffectual (208). “As a result, there is a mounting crisis in the rule of law within Indigenous communities,” because the Canadian law in force there “rests on shaky foundations” because it pays little attention to the values and participation of the people living in those communities (208). “If Indigenous peoples could start to see themselves and their normative values reflected in how they conduct their day-to-day affairs,” he contends, “some of the legal challenges within Indigenous communities would diminish” (208-09). In addition, “Indigenous governance would enjoy greater accountability and legitimacy if Indigenous peoples’ own dispute resolution bodies were properly recognized as being able to resolve their disputes” (209). “The power to hold their own members accountable for their actions could be considered an Aboriginal right that was integral to Indigenous communities prior to the arrival of Europeans,” and because that right was never extinguished, it “can be exercised in a contemporary form” (209). Indigenous peoples have the right, under section 35(1), “to sit in judgment of their own citizens,” and “[t]hey should be able to make them answerable for violations of rights and liable for failures to exercise appropriate responsibility and accountability. Indigenous dispute resolution bodies are in the best position to articulate legal principles that will have the deepest meaning and legitimacy in their communities” (209). I remember that, 10 years ago, the Harper government was all in a lather over this particular issue; perhaps they should have seen Borrows’s argument as a way to address it—although, of course, they probably had other motives rather than finding a resolution.
The approach Borrows is advocating “would be consistent with Indigenous legal values as well as with more general principles of Canadian constitutional law” (209). “Judging Indigenous peoples by norms that flow from within their legal traditions as well by norms of Canadian law is essential to the facilitation of normative order,” he writes. “It would create a regime in which legality and legitimacy would coincide and which would bolster the respect and effectiveness of regimes of accountability. The failure to permit Indigenous peoples to be governed and judged by principles that flow from their own normative prescriptions” has not provided them with stability, order, or predictability (209). Tribal courts exist in the United States, and they “have played an important role in allowing Indigenous peoples to live by their own laws” (209); that example demonstrates “what can happen when these traditions are given juridical space by a nation state” (210). “Thus, the development of Indigenous courts in Canada can lead to broader articulation of Indigenous laws, thereby increasing their intelligibility and accessibility,” he suggests (210), using a summary of Navajo legal traditions in contracts, government, property law, and family law as an example (210-13). That example “shows that the recognition of Indigenous institutions of dispute resolution can even have a place in broader Canadian legal developments and reform. Indigenous peoples can develop their own legal traditions and also participate in Canada’s other institutions” as legislators, parliamentarians, or judges, “because aspects of their legal participation are particular to their Indigenous citizenship (213-14). After all, Quebeckers are not prevented from participating in Canada because that province’s dispute resolution procedures are based on the Civil Code (214). “Similarly, the existence of Indigenous dispute resolution bodies should not preclude the acceptance and application of Indigenous legal principles in broader matters,” Borrows continues. “Indigenous law can influence the development of the common law and civil law and be an important source of guidance for other peoples” (214).
“Canadian courts could also play an important role in recognizing and harmonizing Indigenous legal traditions,” Borrows writes (215). They could “further develop jurisprudence within section 35(1),” interpret recognition and harmonization legislation “if such instruments were passed by Parliament and Indigenous communities,” and “engage in the essential work of declaring the common law’s own position in relation to Indigenous legal traditions, as drawn from their inherent jurisdiction” (215). More Indigenous judges should be appointed to the bench, he suggests, which “would help to ensure that Indigenous traditions would develop by being understood and appropriately applied on a case-by-case basis,” the way that Quebec judges appointed to the Supreme Court have helped it understand civil law (215). Indigenous judges should be appointed to the Supreme Court, as well as other levels in the judicial system (215-16). “The most important reason for appointing people to the bench who have knowledge of Indigenous legal traditions is that they bring new ideas to their task in the context of a settled continuity of Canada’s other legal traditions,” Borrows argues:
A change of ideas when exercising judgment will bring broader reform than almost any other initiative. It is simply not enough to have Indigenous issues, individuals, and institutions become an integral part of the law. Until Indigenous ideas (ideologies) are part of the intellectual exchange, Canadians are just rearranging deck chairs on the Titanic as they deal with the ongoing problems of Indigenous peoples and the law. Nothing in the law changes if “reform” simply means adding a few more issues, individuals, and institutional variations to the mix. Profound legal change requires that questions be examined from perspectives that at least partially emerge from sources outside Western legal discourses and that are motivated by considerations from Indigenous normative orders. (217)
“Standards for judgement must not only flow from the common law but also from Indigenous legal values,” he continues. “Precedent should not be confined to dusty old law books; it should also be open to the authority of Indigenous teachings and law-ways” (217). In other words, “[t]he criteria for measuring what is considered just, fair, and equitable should not solely be drawn from non-Indigenous sources”:
Indigenous codes of conduct need to be part of the law’s formal and informal expressions. Indigenous codes of conduct need to be part of the law’s formal and informal expressions. Indigenous traditions should guide how Indigenous people and other Canadians answer the problems they collectively encounter. Indigenous laws are necessary to meet challenges that lie in Canada’s future. These traditions should be simultaneously compared, contrasted, combined with and distinguished from critical and constructive norms in the civl law and common law traditions. (218)
Judges who have been trained in Indigenous law could perform this role, which is one reason it is so critically important to appoint Indigenous people to the bench. “Their ideas could facilitate a unique exchange with Canada’s other legal traditions,” he concludes. “The exploration of new ideas may lead to answers not immediately apparent under conventional legal reasoning” (218).
Borrows’s next chapter discusses the development of Indigenous legal institutions. He states that “Indigenous peoples should not be forced to accept and integrate into institutions that are designed to conform to the current structures of the colonial state” (219). Instead, “Indigenous peoples must transform their relationships with Canada by practising their traditions throughout their territories, beyond the reserve and other colonial boundaries. Ancient teachings can be regenerated in a contemporary context if they are applied to all sites of struggle encountered by Indigenous peoples within their lives” (219). That doesn’t mean, Borrows continues, that tradition should be “frozen in a past tense or within a reserve-only framework,” but that “an Indigenous logic must infuse the personal and political choices made by Indigenous peoples in all their relations. This includes those relationships within the Canadian state that have an adverse effect on Indigenous legal traditions” (219). He cites the recommendation of the Royal Commission on Aboriginal Peoples that stated “Indigenous peoples should reconfigure their affairs within all levels of the Canadian state. This includes challenging public institutions that contribute to Indigenous peoples’ domination by not recognizing their identity, culture, and need for thoroughgoing participation throughout public life” (219). Unless Indigenous peoples participate in government policy making in relation to Indigenous peoples, those policies will be illegitimate and unjust (220). For Borrows, “the Canadian state must be more fully built upon Indigenous foundations,” and Canada “changes for the better when Indigenous values, perspectives, and legal traditions become a more prominent part of our constitutional fabric” (220).
That’s what his book has argued up to this point, he states. However, “[t]his chapter takes this central insight one step further,” Borrows continues:
It suggests that Indigenous participation has to expand not only in relationship to the larger structures of the Canadian state, but it must also be facilitated in more localized legal affairs. In particular, law societies and law schools should reflect Indigenous participation because they are important sites in conserving and developing Canada’s legal traditions. Such institutions have important responsibilities in promoting high standards of legal education and conduct and these duties should extend to Indigenous legal traditions. (220)
Participation in these institutions, he continues, “could allow Indigenous peoples to see their laws more widely reflected in public life” (220). However, “[b]roader recognition of Indigenous law would also facilitate greater autonomy within Indigenous communities”:
If law societies and law schools were more attentive to Indigenous law, Indigenous peoples would have greater incentives to develop and expand their own traditions. This could add further weight to the push felt by Indigenous communities from their own members to more boldly articulate their laws. The creation of a healthy institutional space into which Indigenous law could flow might lead to more focused efforts within Indigenous communities to explicitly reference their own laws when making decisions. (220-21)
More respect for Indigenous law would give Indigenous peoples greater confidence in their interactions with other Canadians, leading to a growth of trust because they would know “that assimilation did not characterize their work with Canadian institutions” (221). That increased confidence is essential, “because Indigenous peoples will not give up wither deepest beliefs in order to work with others” (221). Policies of assimilation have failed, and recognizing and developing Indigenous law could provide “an important bulwark” against assimilation (221). To accomplish the goals of recognition and developing Indigenous law, “Indigenous peoples cold use their own legal norms and work with law societies and law schools as a way to guide their interactions beyond their reserves and settlements to they can reoccupy their traditional territories and bring them into harmony with other people living in Canada” (221).
First, regarding law societies, they need to “support the further extension of Indigenous law” by implementing “fair and efficient procedures for acknowledging Indigenous legal practitioners’ jurisdictional space for training, licencing, capacity, conduct, professional competence, complaints, and continuing education” (221). They would need to carry out those duties without taking responsibilities away from Indigenous legal bodies; instead, “they should search for ways to recognize and affirm Indigenous legal traditions in a manner that expands but does not compromise their central missions” (221). This change would require law societies to reform themselves, since “most do not have this experience in dealing with Indigenous legal traditions,” and so “they will have to make some significant changes to ensure they appropriately deal with the unique circumstances presented by Indigenous law” (222). Building this expertise “would have to be done with significant Indigenous participation”; there would be no other way to accomplish this task (222). There would be opposition to this proposal, from those who “will worry that law societies will not be sufficiently independent from legislatures to create a legal profession that is truly at arm’s-length from colonial governments,” as well as those who would worry about the difficulty of changing “the common law or civil law bias of law societies” (223). “Some may even regard the recognition of Indigenous law as a challenge to their monopoly over legal services in the provinces,” which would give lawyers “significant financial incentives to exclude Indigenous legal traditions as a recognized source of law” (223). However, if law societies did not move to address the existence of Indigenous legal traditions, “this would not prevent Indigenous peoples from creating their own law societies,” which would be “best organized in accordance with the legal structures and protocols that characterize their various systems” (223). Borrows came to appreciate the importance of Indigenous law societies when he was teaching in the United States, where Native American bar societies exist (223-24). “Despite the evident advantages in creating an Indigenous law society, its development may not be a priority within some communities because of the pressure to devote scarce resources to other more pressing matters,” Borrows acknowledges (225). The Indigenous Bar Association in Canada “could take on a role in the accreditation or coordination of lawyers or other practitioners who may be called on to participate in Indigenous legal systems,” he suggests (226). So could the Canadian Bar Association (227). Because these institutions are independent of government, “they could help to ensure that politics do not impede the healthy developent of the concepts discussed in this book” (228).
Other institutions in Canada that are independent of governments, such as universities, could play a role in the recognition of Indigenous legal traditions. Universities “could work with Indigenous peoples to create law schools to teach multi-juridicalism,” teaching Indigenous law alongside common law or civil law (228). Borrows acknowledges that it might be difficult “to generate the resources to establish” Indigenous law schools,” and so, in the short term, “existing law schools may be in the best position to develop multi-juridical education programs” (229). “The academic rigour and scholastic reputation of an existing law school could enhance the legitimacy of studying Indigenous law and ensure that such traditions are more widely understood,” he suggests (229-30). “Thus, building on existing practices, the day may soon arrive when a Canadian law school will develop a degree program focused specifically on Indigenous legal traditions in a contemporary setting,” perhaps drawing on McGill Law School’s civil/common law program “that integrates learning about the common law and civil law throughout its curriculum” (230-31). Another model would the the University of Victoria law school’s experience when “it conducted the Akitsiraq law school in Iqaluit, Nunavut” (231-32). Borrows goes on to outline what the program of an Indigenous law program might look like (232-37).
Borrows concludes by suggesting that “[t]here are many ways to constructively critique and respectfully change the current configuration of Canadian Confederation, in accordance with the rule of law. Indigenous peoples can work on their own, and with others, to transform their relationships by practising their laws and traditions throughout their territories” (237-38). “Canada’s rule of law is enhanced when our legal traditions are brought into authoritative conversation with one another for the purposes of applying them to resolve pressing disputes that face us as a country,” he continues. “In fact, those who work with Indigenous legal traditions may find themselves claiming that such knowledge makes them better common law or civil law lawyers in certain contexts. They may say they are more attentive to the assumptions and contrasts available within the law when they are practising in their field” (238). Such multi-juridical practitioners would “bring their insights to bear on our problems” and “be in a better position to articulate a solution that has persuasive resonance in common law, civil law, and Indigenous legal traditions. The value of challenging, understanding, and working within a multi-juridical methodology is the next chapter’s focus” (238).
Borrows begins that next chapter, “Living Law on a Living Earth: Religion, Law, and the Constitution,” by explaining that it “attempts to apply the insights found throughout this book by demonstrating what legal analysis might look like if multi-juridicalism was a moreprominent part of Canada’s Constitution” (239). The arguments of this chapter, then, “test the recognition and harmonization of Canada’s legal traditions in the context of whether Anishinabek beliefs concerning the Earth as a living being can be legally recognized and affirmed” (239). What might the answer to that question reveal “about the law’s source, cultural commitments, institutional receptiveness, and interpretive competency” (239)? “These questions explore matters that lay at the heart of Anishinabek spiritual life and at the centre of Canadian legal thought,” he writes. “Thus, this chapter further reveals where bridges and gaps, convergences, and inconsistencies exist within Canada’s constitutional order” (239). Juxtaposing Anishinabek law and “current formulations of Canadian constitutional law reveals the country’s profound legal pluralism at the same time that it highlights the law’s failure to foster broader coexistence and application” (239). In this chapter, Borrows argues “that Anishinabek and Indigenous legal traditions should stand beside the civil law and common law in order to organize and structure society’s relationships” (239). “Each tradition can provide guidance about how we should theorize, practise, and order our association with the Earth,” he continues. “It is therefore appropriate to address the Earth’s legal personality from both Indigenous and Canadian constitutional law perspectives because both operate within the territories we call home” (239). Civil law and common law have force “because Canadian legal authorities have chosen to bestow this authority upon them,” and they are “shaped by and subject to Canada’s Constitution” (240). But “Anishinabek law also has force when it accords with the earth’s biological rhythms and where individuals and communities recognize and abide by its order. This legal tradition is shaped by Anishinabek teachings regarding the Creator, observations from nature, positivistic proclamations, deliberative practices and local customs” (240). It’s “varied sources illustrate that not all legal power in Canada flows from legislation, regulation, and cases” (240). Law can have other sources of legitimacy.
Borrows also suggests that this chapter “reads a little like a lesson plan for highlighting the implications that legal pluralism might hold for Canadian constitutional law. In this respect, it builds upon the recommendations concerning Indigenous legal education in the last chapter,” while it also “highlights the significant challenge further development of multi-juridicalism presents to Canada’s constitutional order,” thereby representing self-reflexively critiquing his ideas (240). He emphasizes the fact that “law is always fright with conflicting and convergent ideas” (240). “This book is not a blueprint for Utopia; I do not believe the inclusion of Indigenous legal traditions in Canada’s legal system will lead to a future free from strife, misery, and distress,” he continues. “Conflict will always be with us,” and for that reason,
it is important to further problematize the interaction of Canada’s legal traditions. While legal pluralism is a better way to frame our legal relationships, because Indigenous peoples at least get to participate in constructing our collective world, conflict is at least diminished under this approach by channelling it in ways that contests domination and facilitates agency. The test of this book’s thesis should not hinge on whether I have crafted a perfect solution to the problem addressed herein. Perfection is practice or theory is not my aim. I believe a more productive test of these ideas is whether they positively enhance or negatively reduce our responsibilities and freedoms in the real world. (240-41)
For that reason, this chapter sets out to think about “how Canada’s constitution could be improved if we more explicitly adopted a trans-systemic approach to legal interpretation” (241).
First, Borrows discusses Anishinabek spiritual beliefs, reminding us that he is a member of Anishinabek legal culture (241). “The Anishinabek regard Michee-Makinakong on the narrows between Lake Huron and Michigan near Lake Superior as the world’s centre, the place where the land above the water was formed” by Michabous in the Anishinabek creation story, he states (241). When the animals Michabous saved from the flood died, “the first Anishinabe arose from their corpses,” and their “identity and dodem or clan names” are taken from those ancestors” (242). “For the Anishinabek, creation of the Earth did not end with Michabous’ experience on the raft,” Borrows continues. “The Earth grows and develops or dies and decays because it is a living being subject to many of the same forces as all other living creatures. Many Anishinabek people characterize the Earth as a living entity who has thoughts and feelings, can exercise agency by making choices, and is related to humans at the deepest generative level of existence” (242). “The subject of the Earth’s personality is a profound religious, political, and legal issue,” he writes:
Since the Anishinabek consider the Earth a sentient being that helps to generate life, religion is implicated in their beliefs concerning her existence. While the Earth is considered sacred, Anishinabek do not worship the Earth as one would a Creator, but she is regarded with great awe, respect, and wonder because of her ability to live a good life and reproduce in numerous forms. Anishinabek people believe in a Creator, Kitchee Manitou, who gave form and meaning to the Earth following a vision. The first elements of Anishinabek creation stories explain how life came into being from a constellation of forces marshalled by the Creator. Later stories convey important spiritual insights by providing instruction about how the Earth must be honoured and respected. Within these teachings it the general recognition that the Earth has a soul (chejauk) that animates its many moods and activities. Many believe that the Creator, as the Great Master of Life, created a universal bond between all living things that placed the earth at the centre of a vast web of kinship relations. (242)
According to Borrows, “[g]reat power can be attached to these relationships because of the spiritual energy that flows between, from, and through them” (242).
Formal religious belief or membership in a formal religious community in Anishinabek society isn’t required in order to regard the Earth as a living being, because the structure of Anishinabemowin (the Anishinabek language) “depicts the Earth in this manner” (242-43). In addition, “there are strong and formalized structures to give this belief even greater coherence,” such as the Medewiwin Society, which “is regarded by some as the traditional Anishinabek religion” (243). “It teaches its members how to appropriately relate to the Earth and other living beings,” Borrows writes (243). In addition. many Anishinabek who are Christians “also hold a belief in a living Earth, either because it is taught within their congregations or because it is accepted as a syncretic practice within their belief structures and communities” (243). Other Anishinabek who are neither Medewiwin nor Christian “hold a strong conviction of the Earth’s agency and personality” (243). Borrows acknowledges that some Anishinabek do “regard the Earth as inanimate, without a soul or spiritual life force”; like any community, there are a variety of perspectives on religion and spirituality in Anishinabek society (243). “Yet despite diverse perspectives, the land’s sentience is a fundamental principle of Anishinabek law, one upon which many Anishinabek people attempt to build their societies and relationships,” and this idea remains “a present-day principle of central significance that has tremendous implications for how we live with one another on the Earth’s surface” (243). I find myself wondering how that belief, as a legal principle, could be harmonized with common law, which is based on a belief that the Earth is inanimate. Wouldn’t environmental laws produced by the two legal traditions be very different, given the extraordinary differences in their starting points? Perhaps Borrows addresses that point later in this chapter.
“Political issues are also implicated in the Earth’s legal personality for many Anishinabek because they regard themselves as striving to live in community with the Earth,” Borrows continues. “The political relationship between humans and rocks creates mutual obligations and entitlements that must be respected for this community to reproduce in a healthy manner. This governmental structure requires humans both to consult with the Earth’s Creator and to seek the Earth’s receptiveness before important decisions are made” (243). Those consultations take place through ceremonies or be observing the Earth’s interactions “with wind, water, fire, and other beings to which she relates” (243). Anishinabek practices also incorporate scientific understandings of how the Earth operates as a way of forming “an important benchmark for respectful behaviour as communities develop greater knowledge about her through time” (243). In addition, “obligations between Anishinabek and the Earth have territorial aspects”:
At one level, the political boundaries of Anishinbek relationships to the Earth coincide with the totality of the planet’s surface. An Anishinabemowin word that describes this relationship is aen-danee-yauk-kummikuak, which means “the nature of the land’s character form which all derive sustenance.” At this broadest level, we are all citizens with and of one land because we depend on its total existence to survive. (243-44)
However, “this wider political ordering does not preclude Anishinabek or the land from being citizens of smaller polities: watersheds, islands, valleys, countries, tribes, cities, reserves, and so on,” nor does it prevent “allegiances across global and smaller geographical units” (244). “Within Anishinabek thought is the encouragement to determine the Earth’s character to make decisions about how to best divide ourselves in ways that are most respectful of her,” Borrows writes. “The ability to relate to the Earth on different scales feeds a multiplicity of citizenship rights for Anishinabek people and the Earth” (244). So a person could simultaneously be a clan member, Anishinabek, Canadian, American, and a world citizen, while the Earth could be a planet, geological plate, continent, or pebble, all at the same time.
In the chapter’s next section, Borrows works through the connection between Anishinabek law and the Earth. He reiterates his argument that Anishinabek legal traditions (like other Indigenous legal traditions) “continue to grow and develop through observation, experience, and interaction with other people’s more recent presence within their territories” (244). “Anishinabek law is a living social order, developed through comparing, contrasting, accepting, and rejecting legal standards from many sources,” he contends, and for that reason, “Anishinabek legal traditions do not lose their Indigenous status if they adopt viewpoints that address matters not encountered before European contact” (244). In addition, there are usually a variety of interpretations of the way Anishinabek law “should be created, studied, and applied,” and these differences of opinion “illustrate the tradition’s vibrancy and vitality” (244).
Borrows’s discussion of Anishinabek law’s relation to the Earth begins with rocks. “Rocks are animate or living in verb-oriented Algonkian languages, of which Anishinabemowin is one,” he states. “The very way in which Anishinabek people conceive of the land as alive is hardwired through language. You cannot even describe the world without acknowledging this fact” (245). Because rocks are animate, “they have an agency of their own that must be respected with Anishinabek people use them,” and that means “it would be inappropriate to use rocks without their acquiescence and participation because such action could oppress their liberty in some circumstances” (245). Because enslaving rocks “could lead to great calamities for the Earth and her people,” it’s important to make sure that “rocks and land are use appropriately” through ceremonies or legal permissions (245). “Under Anishinabek legal traditions, some rocks (or places on Earth) cannot be owned or allocated if such ownership or allocation implies control of the Earth without her involvement,” although a kind of ownership can take place “in accordance with appropriate Anishinabek principles” (245). “The pipe ceremony is a particularly important certification-like process preceding the appropriate use or ownership of land,” he states. “When one participates in a circle and handles the pipe under the guidance of proper leaders, the Earth’s legal personality is acknowledged” (245). It is believed that the smoke ascends to the Creator and thus demonstrates gratitude for existence, and “prayers of thanksgiving are expressed for the rocks, plants, animals, and other humans as the smoke rises from the pipe” (245). The pipe itself represents Earth’s different orders: earth, which makes up the pipe (in the form of pipestone, I would assume); plants, because tobacco is used; animals, because feathers and fur are added to the pipe; and humans, because they are the celebrants (245).
“Use of the pipe is a token of peace between people and the land and between peoples settling on the land,” Borrows tells us. “The Earth is best used by celebrating her contributions and consulting with her creator in this way” (245). For this reason, when treaties between Anishinabek people and Settlers were reached, a pipe ceremony was used “to include non-Indigenous people in this relationship” and “to register their mutual agreement concerning the use of the Earth” (245). Because the Earth carries on while plants, animals, and humans die, “[i]t is contrary to certain interpretations of Anishinabek law to claim absolute ownership of the Earth, which is called a mother because of her role in bringing forth life” (246). “For many Anishinabek, ‘ownership’ is not regarded in the same light as in other Canadian legal traditions,” but trusteeship can be used as an analogy to explain “limitations concerning Anishinabek land use” and “in understanding Anishinabek law” (246). “A trust in equity, as merged through the common law, is a right held by one person (the trustee) for the benefit of another person (the beneficiary),” Borrows explains. “Under Anishinabek law, land is held by the present generation for future generations. Land does not ultimately belong to a person or people in the sense that they have absolute discretion and control; land is provisionally held for (con)temporary sustenance and for those unborn” (246). Such analogies, though, can “create confusion in understanding Anishinabek legal traditions if carried too far”:
Under Anishinabek law, while the Earth is somewhat dependent on other orders of life for its health and vitality, plants, animals, and humans are much more reliant on the Earth for their survival. In this sense, the Earth can be considered the trustee for its beneficiaries (plants, animals, and humans). This analogy may be a stretch for the common law legal imagination because, under the common law, the Earth is neither a living being nor does she possess a legal personality. Nevertheless, Anishinabek legal traditions recognize interdependence between rocks and humans because of their mutual agency. The concept of reciprocal obligations between rocks and humans is an important part of Anishinabek law. People are the beneficiaries of the Earth’s care, and under Anishinabek law this creates duties for the beneficiaries as well as for the Earth (as the so-called trustee). (246)
Borrows provides a contemporary example of these principles: a proposal to move the pow-wow ground on his reserve was made in the late 1990s, and when it became clear that this change would mean building a road over a significant rock formation, an alvar, that is important geologically, botanically, and spiritually, the community decided, after much deliberation and ceremony, that the change would not take place (246-48). “This brief review of Anishinabek law demonstrates that Anishinabek beliefs concerning the Earth as a living being can be legally recognized and affirmed,” Borrows concludes. “It also shows how Anishinabek law can lead to land being accorded political citizenship with its other close relations. Attentiveness to the land’s character and sacred power gives the Earth an important place within this jurisprudential system” (248).
Although Canadian constitutional law provides for freedom of religion, thereby protecting Anishinabek spiritual beliefs and practices, “there are also significant challenges in shielding Anishinabek spiritual beliefs from government interference,” Borrows writes at the beginning of the chapter’s next section. “These challenges are so profound that it is unlikely that courts would uphold Anishinabek beliefs unless they embraced broader conceptions of multi-juridicalism that have been developed in this book” (248). That’s not only because, historically, Indigenous beliefs have been ridiculed. It’s also because “law has a difficult time escaping its liberal context and understands its subject through its own values” (249). “[L]aw is a liberal god that creates religion in its own image,” Borrows suggests, and so “the Constitution will have difficulty protecting Anishinabek religious beliefs and practices if they are outside law’s central commitments to individual choice, autonomy, privacy, and personal conviction” (249). “Unfortunately, if beliefs about the Earth are not informed by a multi-juridical understanding, Anishinabek religion can be characterized as lying outside the Constitution’s informing commitments,” he continues. “They can be seen as being alien to Western law, politics, and religion” (249). “The fact that Anishinabek religion and law treat the Earth as a living being with the power of choice, requiring respect for its autonomy, privacy, and personal convictions,” but “the notion that the Earth is the individual possessing these characteristics probably propels Canadian constitutional law beyond its informing commitments,” stretching “the law beyond its cultural context” (249-50). Arguably the 2017 failure of the Supreme Court of Canada to rule in favour of the Ktuxana First Nation in British Columbia, which tried to block the development of a ski resort on a mountain it considers sacred to the Grizzly Bear Spirit, is an example of Indigenous beliefs being considered to be outside of the protections afforded by Canadian constitutional law (Fine A1).
Borrows summarizes arguments about whether or not the Anishinabek people might find religious protection under the Charter, including arguments that were presented before the Supreme Court of Canada (250-52). The problem is that interpretations of the Charter are not informed by multi-juridicalism, he suggests:
Without seeing the contemporary existence of Indigenous laws it may be hard for Canadian courts to detect the holistic religious practices of Anishinabek spiritual life. Anishinabek spiritual beliefs may not be labelled religious because they can lack many of the outward forms of other worship systems. They are not often taught in churches, synagogues, mosques, temples, or cathedrals. Of all Anishinabek religious experience, only the Medewiwin Society has a lodge where these teachings are more formally taught and practised. One can imagine the difficulty that an Anishinabek Christian would have in proving his or her religious beliefs where doctrines concerning a living Earth are submerged or not easily found written in a church’s doctrinal canon. For many courts, Anishinabek Catholicism or Anglicanism would overshadow Anishinabek beliefs and practices. Similarly, an Anishinabek person not affiliated with any organized religion would have an equally difficult time convincing a court that his or her spiritual views and practices are religious when the collective nature of his or her “worship” is difficult to pinpoint. Most Anishinabek spiritual expression differs substantially from what many people regard as religious, and this could prove problematic for protection under section 2(a) of the Charter. (252-53)
Borrows discusses cases related to religious belief that were argued before the Supreme Court of Canada to suggest that “definitions of the religious nature of Anishinabek spiritual beliefs may not necessarily prove fatal to their claims” (253). Even if those arguments were successful, though, “an Anishinabek person alleging government interference with his or her religion would have to show that the infringement was substantial or non-trivial” (253). Would the construction of a road over “old barren rock through an empty unused field” be considered trivial or insubstantial (253)? Borrows acknowledges that, in a legal environment in which “the Earth is left out of political citizenship and lacks legal standing,” it’s quite possible that such construction would be considered trivial (254). As the example of the Ktuxana case against the development of the ski resort suggests, it’s more than possible that the court would do so.
Even if the court found that the case was not trivial, an Anishinabek claimant would still have difficulty, since the Supreme Court of Canada has stated that freedom of religion is not absolute (254). If Anishinabek beliefs conflicted with the competing rights of others, then the Supreme Court might find that those beliefs must be limited in scope (254). “In other words, if another constitutional right conflicts or competes with Anishinabek religious rights, then those rights might not receive automatic protection,” he writes (254-55). Therefore, “Anishinabek religious beliefs can be infringed upon if the government meets certain standards” (255). However, it’s also possible that “[t]he focus on competing rights might help to protect Anishinabek religious rights from interference,” because contractual and property rights are not “directly protected in Canada’s Constitution,” and so “if protecting Anishinabek beliefs increased transaction costs in the alienability and use of land on and off reserve, then this should not be sufficient to defeat their automatic protection. It is not enough that Anishinabek religious rights may interfere with other people’s economic circumstances” (255). I wonder if the example of the Ktuxana case against the ski resort contradicts Borrows’s argument here. I’m not a constitutional lawyer and so I have a difficult time analyzing what he is saying in this section of the chapter. He does note that “social, political, and contextual factors might limit Anishinabek religion,” and that “courts will find it difficult to ignore the economic costs” of recognizing such religious rights “if they have social or political implications. Courts could find reasons to weigh and favour non-Anishinabek economic interests against constitutionally protected rights” by invoking the limitations to freedom of religion in matters of public safety, order, health, or morals (256). “Restraints on the alienability of land and the government’s ability to develop infratructure over what to others looks like barren rock could bring other interests to the foreground, thus justifying government infringements upon Anishinabek religious rights,” he admits (256).
“The standard for proving whether the Crown has an important objective in passing legislation is often deferential in the government’s nature,” which “represents another hurdle for Anishinabek religious protection” (256). “The fact that law’s distribution of land after contact unjustly stripped Indigenous peoples of their land rights over an area might not enter into the court’s evaluation,” he notes:
In other words, the courts might not see government action in the creation of private property out of traditional Indigenous territories. If the government’s role in creating private property is not recognized, then non-Aboriginal property rights might become a surrogate for making certain activities more pressing and substantial for governments, thus potentially constricting the scope of Anishinabek religious freedom. The cultural context of constitutional law is visible only if one is reminded of this fact, which again demonstrates the value of working in a multi-juridical context to remind judges of this fact. (256-57)
The question of the minimal impairment of rights is also part of this issue. “In the circumstances of Anishinabek spiritual beliefs that are interfered with by road building, it would likely be easy for governments to show that the exercise of zoning or expropriation powers for roads is rationally connected to legislative objectives,” Borrows writes. “Presumably, all that the government would need to show is that the road connects point A to point B in a way that makes sense for its purpose” (257). The road could take up the smallest possible area, “and Anishinabek practices cold be respected through pipe ceremonies, permissions, and prayers” (257). “Although such measures resemble appropriate accommodation, one must not forget that the Earth might say no to the development of the road, and yet the government might still decide to go ahead with the construction,” he continues. “While the accommodation suggested is probably fair under Canadian law, one can see how it still likely offends religious beliefs. Thus, while minimal impairment might not be possible from an Anishinabek perspective, the Supreme Court’s own test would presume that a reconciliation of government objectives and Anishinabek beliefs could be accomplished” (257). That presumption “would likely favour non-Anishinabek governmental objectives over Anishinabek beliefs and reveal the culturally constraining character of Canadian constitutional law,” and “[t]he minimal impairment test may be an example of a place where the law shows its inability to travel beyond its own informing commitments” (257). My only quibble with Borrows’s argument here is his all-too-careful use of the word “may”: perhaps I’m cynical, but it would be hard to imagine any Canadian court siding with an Indigenous belief that the Earth is alive over a government that wanted to build a road.
“Finally,” Borrows continues, “Anishinabek beliefs may be infringed upon if the salutary effect of the road’s construction outweighs its deleterious effects on Anishinabek rights” (258). The damage to Anishinabek spiritual beliefs would be weighed against the practical benefits of the road and found wanting. A belief in the Earth’s agency “potentially threatens the core of North American economic organization in the twenty-first century”: “If the alienation and use of land are limited by one small group’s spiritual beliefs, it could impose unacceptable costs on the development for others” (258). Courts would also be cautious about the potential abuse that could arise from recognizing Anishinabek spiritual claims: some untrustworthy people “might claim power to speak exclusively for the Earth to fraudulently advance their economic, social, or political agendas” (258). How could the judiciary distinguish between legitimate and fraudulent belief? “As with many spiritual matters, beliefs are linked with faith, which is difficult to test in objective norms and should cause us concern,” Borrows states (258). “Thus, when measuring deleterious effects that Anishinabek people might experience,” he continues,
judges will have to resist the temptation to measure favourably the law’s salutary effects against their own cultural understandings of the law. Roads are generally seen as good or at least a necessary evil within Canadian society. They foster communication, commerce, and expansion. “Empty” land is often seen as unproductive, inefficient, and of less value if roads do not service such sites. One might legitimately ask: Why should Anishinabek beliefs trump the social conveniences of enhanced mobility, municipal planning processes, and economic efficiencies that roads create? While it is possible that judges might be able to check their cultural biases in making these evaluations, they must still provide reasons for decisions drawn from Canadian constitutional law cases. If the law itself has embedded certain cultural commitments concerning land use that largely accord with non-Anishinabek organization, then it may be difficult for the law to move beyond its own parameters in such judgments. (258-59)
That is, the law might find such movement difficult unless multi-juridicalism is present in the judicial analysis, Borrows contends (259). But, as things currently stand, it would be difficult for Anishinabek people to achieve the Charter’s protection of religion “without a more explicit call to incorporate Indigenous legal traditions into Canada’s constitutional framework” (259). “Thus, while Canadian constitutional law may on rare occasions transcend its cultural context and informing commitments, it continues to draw significant inspiration from its common law parentage,” Borrows concludes. “Constitutional law will remain limited in its application to Anishinabek spiritual life until it regards its birth as also flowing form another source, outside its European and so-called neutral conception. Unless the multi-juridical nature of law is recognized, Anishinabek religion will be better protected through Anishinabek law” (259). Therefore, “greater space must be found within our legal systems to recognize and affirm our complex and right legal heritage” (259).
In the chapter’s next section, Borrows explores that possibility that Anishinabek people might use section 35(1) of the Constitution Act, 1982 to protect their spiritual beliefs and practices (260). That section states that “‘[t]he existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed’” (qtd 260). “While this section may be more likely to transcend common law’s cultural footings, the courts have not yet achieved this result,” Borrows states:
Despite attempts to incorporate Indigenous perspectives and laws, section 35(1) remains securely tied to its non-Aboriginal foundations. There is no real Indigenous law cited in arriving at appropriate decisions. In fact, the Supreme Court of Canada has taken to translating Indigenous perspectives and practices into common law rights, a sure sign of the problematic nature in this section’s current configuration. Making common law the ultimate measure of ancient Indigenous traditions virtually ensures that non-Aboriginal cultural practices will predominate within section 35. (260)
According to Borrows, “[a] multi-juridical read of the constitution is needed to overcome this bias” (260). Despite the Supreme Court of Canada’s 1990 declaration that “the recognition and affirmation of Aboriginal and treaty rights represented the ‘culmination of a long and difficult struggle’ that ‘calls for a just settlement for aboriginal peoples’ and ‘renounces the old rules of the game,’” it is clear that “section 35 did not end Indigenous peoples’ struggle for ‘a just settlement,’ nor did it renounce the most problematic aspects of ‘the old rules of teh game’ that give preferential treatment to non-Aboriginal cultural interpretations of Aboriginal and treaty rights,” Borrows contends. “Indigenous peoples are still struggling for their rights, and the new rules of the game increasingly look like the old rules,” particularly since “the common law as applied within section 35 seems to be collapsing back into itself and is interpreting Aboriginal and treaty rights through non-Aboriginal categories and principles” (260). “In fact, it might almost be argued that resort to its own contextual categorizations is ‘integral to the distinctive culture’ of common law’s practices, customs, and traditions—since their ‘contact’ in North America with Aboriginal peoples,” Borrows continues. “Indigenous legal traditions are almost invisible in the current way problems are addressed under section 35(1)” (260-61). I’m not sure what the word “almost” is doing in that quotation; although I appreciate Borrows’s careful way of writing, sometimes it undercuts his argument.
For Borrows, the problems with section 35(1) “can be illustrated by considering how this section might be used to protect Anishinabek spirituality” (261). He takes the example of road construction over a significant rock formation as his example. Anishinabek people might have many options under section 35(1) for protecting that site:
For example, the Anishinabek could try to assert an independent Aboriginal right to religion, they could claim Aboriginal title over territory considered sacred, they could attempt to prove a site-specific Aboriginal right to a religious practice, they cold argue that they have an Aboriginal right to governance in relation to the alvar, or they might maintain that they possess a treaty right to territory, governance, or religion. Each argument and perhaps more can be relevant to the protection of Anishinabek religion. (261)
However, Borrows contends, “the most significant Anishinabe concern is the one underlying this chapter, that of a living Earth,” although the other arguments are also relevant, such as the idea that treaties are sacred covenants which “imply deep religious obligations” (261). “While the spiritual nature of Indigenous treaties is sometimes acknowledged in section 35(1) jurisprudence, its implications for Indigenous spirituality must be explored in future research,” he continues, citing his yet unpublished paper prepared for the Saskatchewan Treaty Commissioner (261). (I wonder if he would send me a copy of that paper if I asked.)
The courts have ruled that Aboriginal rights under section 35(1) must meet specific tests:
it has to be established first that Anishinabek religious practices or beliefs concerning a living Earth were integral to the distinctive culture prior to European contact. To receive constitutional protection, the Anishinabek belief cannot be the result of European contact. The court would expect to find that a belief in a living Earth truly made the society what it was, in 1615, at the moment Samuel de Champlain made contact with the Anishinabek of Georgian Bay. The Supreme Court curiously, does not seem to find it relevant if Anishinabek practices, customs, or traditions developed in response to contact with other Aboriginal nations. (261-62)
This test has been criticized as freezing Indigenous cultures at the point they met European cultures (262). “While this test is exceedingly problematic when applied to Aboriginal hunting and fishing rights, its injustice becomes even more pronounced when Aboriginal religion is at issue,” Borrows writes, since it “denies Indigenous people protection of the inner means to cope with the physical impoverishment that often developed as a result of European contact” (262). “Making Aboriginal religious rights dependent on whether practices, customs, and traditions were in existence before European arrival reveals the culturally chauvinistic roots of Canadian constitutional law relative to Indigenous peoples,” he continues (262). It also creates “difficulties of proof”: “One can imagine scenarios in which the test is section 35(1) potentially undermines Anishinabek religion, particularly if it ‘proves’ that the belief in a living Earth is an ‘inauthentic’ modern invention contrary to the present perception of Anishinabek spiritual views” (262). If the Supreme Court of Canada were to decide that this belief did not pass the test, it would “certainly constrict the socio-legal and political spaces within which Anishinabek laws could grow. Such a decision would hamper the further development of a healthy multi-juridicalism in our land” (263). Also, other constitutional questions are not asked to submit to such a test (263). “The Supreme Court’s test thus inappropriately encumbers and potentially distorts Indigenous spirituality and the constitutional protection available to it under section 35(1),” Borrows continues. “It misses one of the central points being made about multi-juridicalism in this book—Indigenous peoples have living legal systems that evolve through time. Protection for religion under these systems can change over the years even as individuals and societies attempt to maintain an acceptable degree of continuity with past beliefs and practices” (263). For all of these reasons, the test “makes section 35 exceedingly inappropriate for the recognition and affirmation of Anishinabek religious freedoms” and “degrades the court’s role as a champion of human rights” (264).
“Similar problems will be encountered if protection for religious practices is sought through Aboriginal title,” Borrows writes:
While the language of Aboriginal title does not often explicitly use the ‘integral to the distinctive culture’ test for proof, this test underlies the reasons courts seek to protect title. If Anishinabek people sought to protect their religious freedom through Aboriginal title, they wold have to prove that they had exclusive occupation of the territory prior to the assertion of British sovereignty and that this occupation was continuous through time immemorial until the present day. It might be difficult to establish these facts if certain pieces of land cannot be occupied in accordance with Anishinabek law because the Earth is living. It seems to be logically inconsistent to use evidence of non-occupation as proof of occupation for Aboriginal title. (264)
Borrows suggests that “courts would likely resist attempts to protect Anishinabek religion through Aboriginal title or any other section 35(1) grounds” (264). They would likely consider any claim that sought to protect the alvar as “an indirect and more generalized claim for religious respect,” and “[t]he courts are loath to cast Aboriginal rights claims at broader levels of generality when more specific claims can be made; their search is for the appropriate level of specificity relative to the claim” (265). Section 35 is too limited, he suggests. And “even if Anishinabek people are able to prove that their beliefs and practices related to a living Earth are integral to their distinctive culture prior to European contact, their struggle under section 35(1) is still not over,” because they would “still have to prove that their rights were not extinguished prior to 1982” (265). In that case, those rights would not be included within that section of Canada’s constitution. The standard of proof for extinguishment is quite high, but unfortunately “one of the few cases to have considered extinguishment as it relates to Aboriginal religious rights,” R. v. Thomas and Norris, “construed the Crown’s power in the widest possible manner, to the detriment of Indigenous religious freedoms” (265). That decision “privileges the common law and civil law over Indigenous law by the raw power of judicial assertion,” and it may have “extinguished Aboriginal rights to spiritual prctices concerning a living Earth when it was introduced” (266). “Without a multi-juridical reappraisal, the Thomas and Norris case representa a potentially insurmountable hurdle for Anishinabek spiritual beliefs because it reads extinguishment in the broadest possible light,” Borrows continues, although “strong doubts can be raised concerning the astonishingly low standard of extinguishment used in this case” (266-67). “Indigenous peoples’ religious rights under section 35(1) hang under a cloud of general extinguishment unless the courts precisely and unequivocally reject the assumption of cultural superiority in Thomas v. Norris,” Borrows states. “The explicit recognition of multi-juridicalism in cases like this would be one way to dispel this bias” (267).
“Finally, Indigenous peoples have one last obstacle to overcome to secure their religious freedoms against government interference under section 35(1),” Borrows continues (267). The Crown can argue “that it has the right to infringe upon Anishinabek religion under section 35(1) through a justificatory process” (267). In other words, “[t]he Crown can justify the infringement of Aboriginal rights if it has a valid legislative objective and its actions are consistent with the honour of the Crown” (267). It would be easy to show that the Crown has a valid legislative objective in building a road (267). “In addition, it would be possible for the Crown to show that infringement of Anishinabek beliefs and practices is justified if procedures that uphold the Crown’s honour are followed,” Borrows writes (268). Numerous obligations constrain the Crown’s sovereignty when Aboriginal rights are at issue, but “these constraints do not mean that governments are prevented from taking action that overrides Aboriginal rights if they follow proper procedures” (268). “[T]hese obligations can be a powerful tool for Anishinabek people to increase the scope of their rights,” because “[t]hey place Indigenous peoples’ relationship with the government in a reciprocal light, and show the crown may have to defer to Indigenous legal orders in certain circumstances” (268). In the example of the road across the alvar, these obligations could include recognition, affirmation, reconciliation, the prevention of the perpetuation of historic injustices, undue hardships on the exercise of religious rights, the need to give priority to Anishinabek spiritual beliefs and practices when rights are infringed, consultation, accommodation, the mitigation of the impact of government actions on Anishinabek rights, and compensation for the loss of religious rights (even though that might be impossible) (268-69). The application of these rights and obligations “calls upon Indigenous collective action to authoritatively deal with governments if rights are threatened,” and recognizing “the reality of Indigenous legal orders in such circumstances could strengthen the country’s multi-juridical framework” (269). However, “governments may find appropriate ways to infringe upon Anishinabek religious rights and this may render nugatory these significant governmental obligations” (269). “Thus, despite the potential of section 35(1) for recognizing and affirming Anishinabek spiritual beliefs and practices, it may have difficulty travelling beyond its own cultural commitments,” Borrows concludes. “Anishinabek rights might not be protected under section 35(1) if they are found not to be integral to the distinctive culture, if they are deemed to have been extinguished, or if the Crown is able to justify infringement through a valid legislative objective and the preservation of its honour” (269).
I am frankly shocked by all of this—but at the same time, I’m not shocked at all. I had thought that section 35(1) was worth more than Borrows demonstrates. No wonder Indigenous peoples have such a difficult time getting justice from Canada’s courts. We need to do much better than this, and while I would think that multi-juridicalism would be hard to practice, given the differences between Indigenous legal traditions, on one hand, and common law and civil law, on the other, Borrows makes a strong case in this chapter that justice will be impossible without the recognition and development of Indigenous law. Borrows states as much:
To better protect religious beliefs and practices, Anishinabek and Indigenous legal traditions should stand beside Canada’s Constitution to organize and structure society’s relationships. Greater space is needed within Canada’s doctrinal fissures and formal legal structures to recognize and affirm this country’s multi-juridical reality. Indigenous dispute resolution bodies, governments, and tribal courts could perform an important function in extending religious freedom within Aboriginal communities. They could also provide greater visibility for Aboriginal law within Canadian constitutional structures and perhaps one day lead to a significant breakthrough in that forum. (270)
“Whether the Earth is thought of as living or dead, our laws have some distance to travel before they fully address the depths of our disagreements with one another,” he concludes. “There is still much work to be accomplished before Canada’s constitution can be regarded as rigorously multi-juridical” (270). So much work needs to be done, in fact, that I find myself despairing at the monumentality of the task and the paucity of interest in getting started.
Borrows’s last chapter, “The Work Ahead: Cultivating Indigenous Legal Traditions,” “acknowledges that Indigenous legal traditions will not grow to their full potential unless we actively work at their further development” (271). “Indigenous laws can be reinforced if people in positions of power actively seek to support them,” he contends, and “[p]art of this support requires ensuring that state structures do not inappropriately displace the individual and family in the development of tradition” (271). Canada’s “balanced, somewhat decentralized federal state is built on the principle of harmonized disaggregation,” and so the recognition of difference is one of Canada’s strengths (271-72). The principles of federalism “should be extended beyond federal-provincial relations and applied to First Nations, Métis, and Inuit laws and governance” (272). Explicitly recognizing Indigenous legal traditions “could lead to useful experimentation and innovation in solving many of Canada’s pressing problems,” and “the affirmation of Indigenous legal traditions could strengthen Canadian democracy by placing decision-making much closer to the people within these communities,” as compared to federal and provincial governments, which “tend to be less responsive to the Indigenous electorate than Indigenous governments would be if they could exercise greater responsibility for their own affairs” (272). Borrows acknowledges that recognizing Indigenous law “is bound to be contested and create difficulties in law and policy,” but doing so would be consistent with the human rights of Indigenous peoples, “while ensuring that others’ rights were not abrogated” (272). The ideas in this book “are directed at recognizing and creating practices that will find an appropriate harmonization between the interests of society as a whole and the rights, values, and laws of Indigenous peoples” (273). Because “Indigenous law should . . . be treated as an active system that contains its own values, norms, uses, standards, criteria and principles,” “intellectual methodologies that express Indigenous legal concepts must be embedded in and thereby change the very structure of Canada’s law” (273). Those legal methodologies “should also be recognized and affirmed on their own terms as having force within Indigenous communities” (273). And “[a]s Indigenous normative concepts are extended into regulatory and dispute resolution regimes at local, provincial, and national levels, a greater range of options will be available to tailor solutions to particular issues and disputes” (273). For Borrows, incorporating the very different perspectives of Indigenous law, on one hand, and of common law and civil law on the other, “in a morally and politically defensible manner is what I have attempted to do in this book. This task is a societal task but it can also have more personal applications” (273-74).
Borrows then tells the Anishinabek story of manadamin, or corn, which provides an example of “the kind of effort needed to encourage the growth of Indigenous legal traditions in Canada” (274). One day, a stranger arrives in a village, saying that he has gifts to give to a good man. The people in the village suggest he talk to a young man whose grandmother, whom he loved, had recently died. The stranger, whose name is Mandamin, tells the young man they must fight to prove the young man’s merit. Although he initially refuses, the young man says he will fight in order to to protect his community. After a four-day battle, the young man kills Mandamin and buries him beside his grandmother. He tells the village medicine man what had happened. The medicine man says that the young man must care for Mandamin’s grave the way he cares for his grandmother’s, and he does so. The following spring, he discovers a new plant growing from the soil there. The medicine man tells him to let it grow. When the plant matures, the medicine man tries one of the yellow kernels and names the plant “mandamin,” or “Food of Wonder.” The young man did not kill Mandamin; rather, he gave the stranger “life in a new form” (278). “Mandamin’s message has implications for the development of Indigenous law,” Borrows explains:
Just like the young man, Indigenous peoples face many challenges from outside their communities. They have many choices about how they will deal with the challenge of developing their laws. There must be adaptation to change, but this must occur within a context that respects our grandparents’ good teachings. Challenges regarding change must be met with goodness at the centre point of judgement. The young man was fortunate to have the opportunity to listen and ponder upon his grandmother’s teachings before she died. (279)
In addition, the story “teaches that Indigenous peoples have successfully encountered change in the past and this has helped sustain them. We have experience in receiving new people and ideas in our lives, and these experiences of receiving them have been a part of our traditions for a long time” (279). Change isn’t always easy, and “[t]he development of Indigenous law in a contemporary context requires similar struggle. There are risks involved. Survival is sometimes on the line” (279). And sometimes Indigenous peoples will fail: “There will be times they do not succeed in making their values the core of judgment in their communities and in having these norms also impact on wider Canadian society” (279). The story suggests what is required to achieve success, and indicates that “[i]t may take some long periods of time to see results” (279), because “Indigenous peoples will find themselves battling forces that would like to defeat Indigenous law” (280). In addition, it teaches that some legal practices “must die in order for them to be transformed into a more nourishing way of living,” and that “the death of threatening traditions must take place in all legal systems” (280).
There are different versions of this story, told by different Elders, and that “demonstrates that there are often varied approaches to legal meaning within the law of a single tradition,” differences that “are shaped by gender, perspective, life experience, and age” (280-81). Indigenous jurists will not “speak with unanimity in their articulation of the law”; we do not expect that of Parliaments, judges, or legal scholars (281). Different versions will emphasize different qualities of the story. One version says that the young man cultivates the plant; another that he leaves it as it matures. One story, then, is about “the importance of active monitoring and control over the legal development process,” while the other suggests that the development of the law is often beyond a community’s control. “Once the forces of creation and change are in motion, some matters cannot be contained,” Borrows states. “The lesson we can take from this as it relates to the law’s development is that while Indigenous people can do much to create better futures, it must also be acknowledged that development always contains a degree of risk” (281-82). That fact does not mean “that Indigenous peoples should forsake their quest for peace and order in their own communities and in their relationships with others,” he continues. “Rather, it means they must also recognize that the paths towards a better future will not always be ones they can completely create on their own” (282). This statement is generous and optimistic, given much of what Borrows describes in the rest of his book, and given the history of genocide and displacement that marks at least the last 200 years of relations between Indigenous peoples and Settlers in this country.
Like the young man, “Indigenous peoples and others have a fight on their hands to bring multi-juridicalism to its fullest fruition,” Borrows concludes. “They will have to work hard and exercise care and patience in cultivating the grounds for broader acceptance. Part of this process will involve rooting traditions in contemporary community values that are consistent with our country’s most revered legal teachings” (282). Not acknowledging Indigenous laws will constrain the rule of law in Canada, and “the burden will be weightier for Indigenous peoples if this occurs” (282). It needs to be remembered that Canadian law “also derives its authority from force,” as well as “appeals to precedent, consensus, reason, and consistency”:
Its application can be hard to wrest from the biases of wealth, status, social convention, and established Western traditions. If Indigenous peoples and others choose to take advantage of opportunities noted in this book, these cautions should be amplified and heeded. While busy working for recognition and affirmation of Indigenous laws within Canada, supporters must also remember that such victories can be hollow if Indigenous peoples’ own traditional authorities are permanently subjugated in the process. This warning is not to counsel against working with Canadian law in every case but is meant to simultaneously keep our attention on its collateral consequences. We must continue to speak many languages of law. (282-83)
Borrows notes that he expands on the last point in a companion book, “written simultaneously with this work,” entitled Drawing Out Law: A Spirit’s Guide, which, coincidentally, I was using to hold open the pages of this book as I typed this summary (283). (Perhaps that means I need to read it next.) “Canadian law can sometimes be used with great effect, but only if Indigenous cultural values, traditions and authorities are simultaneously part of this process,” he writes. “Canadian law can also be a problem. If Indigenous peoples cannot practise their traditions in light of the conceptions developed in this book, they will be rightly rejected” (283). But we can choose “to recognize, affirm, and apply Indigenous legal traditions alongside the common law and civil law,” or else “we can choose to deny their historic reality and contemporary force” (283). We can thus either “mark our country as progressive and open to legal guidance from the best of our traditions, or as oppressively fundamentalist and frozen in our orientation to law” (283). For his part, Borrows chooses freedom: “Legal cultures are fluid. Law is in the process of continual transformation, and Indigenous peoples must participate in its changes” (283). “Multi-juridicalism must receive the support it needs” to nourish the strengths of our legal traditions: their wisdom, durability, and flexibility,” he continues. “Indeed, our Constitution depends upon it” (283).
Canada’s Indigenous Constitution has turned out to be very useful for my research. I’m surprised, in fact, that a book on constitutional law could be so applicable, but since my proposed walks are a response to treaty, perhaps I should have known better. It’s also much more soundly argued than John Ralston Saul’s book which describes Canada as a Métis nation. I agree with Borrows on the difficulty of putting into practice the changes he recommends, and I wonder if his ideas will ever find a sympathetic ear in legislatures, Parliament, or the courts. Because I’m not a lawyer, perhaps all I can do is hope that they do, although I’m aware that hope is not sufficient, and that more is required from any Canadian concerned that our legal system become a system of justice. In fact, I’m convinced that the recognition and development of Indigenous law is, at least potentially, a pathway for Settlers to find an ethical way to live on these lands.
Borrows, John. Canada’s Indigenous Constitution, University of Toronto Press, 2010.
Fine, Sean. “Top court deals blow to Indigenous peoples.” The Globe and Mail, 3 November 2017, p. A1. Gale OneFile: CPI.Q (Canadian Periodicals), https://link.gale.com/apps/doc/A513011236/CPI?u=ureginalib&sid=CPI&xid=fac5747c. Accessed 24 Jan. 2020.
Graff, Gerald, and Cathy Birkenstein. They Say/I Say: The Moves that Matter in Academic Writing, 4th edition, Norton, 2018.
Krasowski, Sheldon. No Surrender: The Land Remains Indigenous, University of Regina Press, 2019.
Saul, John Ralston. A Fair Country: Telling Truths About Canada, Penguin, 2009.
Simpson, Leanne Betasamosake. As We Have Always Done: Indigenous Freedom Through Radical Resistance, University of Minnesota Press, 2017.