Power & Influence Summer 2017

An emphasis on indigenous law could help shape a future that’s brighter than our past

We will be a much stronger nation when indigenous precedent, authority, standards, criteria, processes, and principles are recognized as part of the law of this land, writes law professor John Borrows. P&I photograph courtesy of UVic and the Royal BC Museum and Archives

PUBLISHED : Wednesday, June 28, 2017 12:00 AM

For indigenous peoples, the 150th anniversary of Canada carries little cause for celebration.

For us, the history of Canada is one of dispossession, disruption, and coercion. First Peoples have suffered greatly since Confederation, and it is worth asking whether the same will be true of the next 150 years. The Truth and Reconciliation Commission raises the promise of a new beginning, but what kind of beginning will that be? What would Canada look like if it truly respected indigenous peoples?

I believe our greatest hope for a new beginning lies with our young people.

In my 25 years as a law professor, I have taught thousands of students. They are inspiring, bright, and full of hope, insight, and imagination. It has been a great honour to work with them.

  

Yet despite their general optimism, many feel betrayed as they learn more about Canada’s treatment of indigenous peoples. Discovering the truth immobilizes some of them, though most are driven to action. They seek to change how we relate to one another, both in the classroom and a er they leave law school.

An Anishinaabe law camp. Photograph courtesy of John Borrows.

However, law schools can do much more to enhance and support these efforts, and introducing students and practitioners to indigenous law is a critical component of that work.

Calls to action from the Truth and Reconciliation Commission have challenged universities and law societies to take that step. Education is key to charting a new future. Engagement with indigenous perspectives invites students to find ways of turning the tide. The University of Victoria’s Faculty of Law is poised to engage in these broader conversations with the introduction of Canada’s first Indigenous Law Degree.

After 11 years of preparation, pending provincial approval, the degree will be offered concurrently with UVic’s conventional common law degree. The joint degree will be taught by comparing and contrasting indigenous peoples’ legal traditions with those of common law. The four-year program will include classroom and community-based components, and will follow the lead of McGill Law School’s transsystemic approach to common law and civil law legal education, by giving students the opportunity to tackle legal problems from multiple perspectives.

  

Students will learn how different legal systems approach pressing questions. They will see the common law in a clearer light through a comparative lens. They will work more effectively with indigenous communities because they will have the methodologies, skills, and language abilities to connect with these varied traditions.

The dual degree program builds on our legal heritage. The Supreme Court of Canada has observed that our constitutional processes and principles are “inter-societal” when it comes to aboriginal questions. It has written that a “morally and politically defensible conception of Aboriginal rights” will incorporate both common law and indigenous legal perspectives.

The court’s constitutional goal of reconciliation, which bridges legal traditions, is one of the motivating foundations for this dual degree. Law schools and law societies cannot act as if Canada’s traditions of common law and civil law are the only sources of authority.

Indigenous peoples also have legal authority that can be referenced and applied when regulating our lives and resolving our disputes. Indigenous law holds standards for judgment. Indigenous legal traditions have criteria for measuring whether actions are consistent with broader principles when making decisions.

  

Indigenous law is unfamiliar to most judges, lawyers, legislators and students in Canada—but it’s not unknown. UVic has taught indigenous law through summer programs and courses for many years. Our Indigenous Law Research Unit regularly engages with communities, giving students an opportunity to learn and apply these traditions. I have taught intensive courses in indigenous law at the Schulich School of Law at Dalhousie University and at my alma mater, the University of Toronto Law School. My colleagues have done the same at law schools at the University of Alberta and McGill.

UVic anticipates being the first university in Canada to offer this dual degree, but that’s not to say that other institutions aren’t already involved in this important work.

Bora Laskin Law School at Lakehead University has a compulsory standing course in Indigenous Legal Traditions. Inuit Law was a vital component of the Akitsiraq Law School when UVic offered that degree in Nunavut more than a decade ago.

Students from the University of Windsor Law School and Western Law School have been involved in indigenous land-based legal experiences at nearby reserves with University of Windsor Law School and Chippewa of the Thames in southwestern Ontario.

A legal camp in Cape Croker. Photograph courtesy of John Borrows.

For the past three years, students from Osgoode Hall Law School have come to my reserve at Neyaashiinigmiing (Cape Croker on the Bruce Peninsula). Each September they have participated in a four-day intensive experience learning Anishinaabe law from elders, leaders, teachers, and myself.

These experiences demonstrate that indigenous law can be learned both in the classroom and in community. When the day comes that these viewpoints are intensively embedded alongside the common law in legal education, the domination that indigenous peoples have endured will be attenuated.

Teaching indigenous law must also take into account the complexity involved in teaching the variety of indigenous legal traditions that exist across the country. But while there are more then 600 Indian Bands in Canada—along with numerous Metis and Inuit governments—legal traditions generally tend to run along linguistic lines. There are around a dozen indigenous language families in Canada, and more than 50 different languages within these families.

So, while there are local variations among the approximately 125 Anishinaabe bands throughout Canada, for example, the general contours of Anishinaabe
law are broadly recognizable to those practicing this tradition. It’s also the same tradition followed by the approximately 20 Anishinaabe bands in the United States.

Reference to how our relatives south of the border deal with similar issues is instructive. Band councils and tribal courts in that country act through constitutions, legislation, regulation, case- based determinations, peacemaking, and customary law. All of that provides valuable food for thought and application. Placing Anishinaabe law in its broader context and comparing it with the common law reveals patterns and themes for practicing law within this tradition. The same is generally true of the other linguistic traditions I have explored.

Indigenous law is also revitalized as it is taught. Traditions are renewed through their transmission. We must remember that the common law evolves as professors and students research and write about it—it is revived and rejuvenated each
time it is discussed.

The same will be true when indigenous communities and teachers introduce their laws to students and practitioners in UVic’s dual degree program. Indigenous law flows from living legal traditions, where the past is brought into the present to address future needs.

Indigenous peoples may not have much to celebrate as Canada marks its 150th year, but there is the prospect of a brighter future if we can reverse the flow of judgment that has disadvantaged them through the years. We will be a much stronger nation when indigenous precedent, authority, standards, criteria, processes, and principles are recognized as part of the law of this land.