JOHN TAIT MEMORIAL LECTURE
CONFRENCE COMMMORATIVE JOHN TAIT
Creating an Indigenous Legal Community
John Borrows*
law
is not
limited
indigenous
In this lecture, the author challenges us to move
beyond the cases and statutes that preoccupy lawyers
generally and to reach, in the spirit of legal pluralism,
for law expressed elsewherein oral histories and
everyday lives. By weaving indigenous oral and
Western scholarly traditions together, he demonstrates
the existence of a pluralistic
legal
community and argues that conceiving of Canada as a
bijuridical country is inherently limiting. Only through
a pluralistic, multijuridical framework can we fully
respect the place of indigenous legal thinking.
It is also essential to recognize that the scope of
indigenous
to Aboriginal
communities. Indigenous law is more than just private
or Aboriginal community law: it is a part of Canadas
constitutional structure. In fact, both indigenous and
non-indigenous peoples benefit from treaty rights. As
such,
the significance of
indigenous law will result in the impoverishment of our
understanding of Canadian laws and legal processes.
The author builds on this argument to suggest that
we can create an even stronger indigenous legal
community in Canada. He underscores the importance
of committing to John C. Taits notion of dialogue in
building a strong sense of community. By moving in
this direction, Canada can be a world leader by
recognizing the central role of indigenous law in
private
law, andperhaps most
importantlyconstitutional law.
law, community
recognize
failing
to
Dans cette allocution, le confrencier lance le dfi
daller au-del des arrts et lois qui proccupent
gnralement les avocats pour sintresser, dans lesprit
du pluralisme juridique, dautres sources de droit
telles que lhistoire orale et la vie au quotidien. En
entrelaant la tradition autochtone orale et la tradition
acadmique occidentale, il dmontre lexistence dune
communaut
juridique autochtone pluraliste en
soulignant quil est restrictif de concevoir le Canada
comme un pays bijuridique. Seul un cadre pluraliste et
multijuridique permet de donner sa juste place la
pense juridique autochtone.
Reconnatre la porte du droit autochtone au-del
des communits amrindiennes est primordial. Plus
quun simple droit communautaire priv ou autochtone,
cest une partie
structure
constitutionnelle canadienne. Dailleurs, autochtones
comme non-autochtones bnficient de droits issus des
traits. Ne pas reconnatre la valeur du droit autochtone
appauvrirait notre comprhension du droit canadien et
de son fonctionnement.
lon cre une
communaut juridique autochtone encore plus forte. Il
souligne limportance de sengager poursuivre la
notion de dialogue avance par John C. Tait afin de
dvelopper le sentiment dappartenance communautaire.
En faisant un pas dans cette direction, le Canada pourrait
devenir un chef de file, reconnaissant le rle primoridial
du droit autochtone en droit priv, en droit
communautaire et, plus important encore, en droit
constitutionnel.
Lauteur propose donc que
importante de
la
* Chippewas of the Nawash First Nation, Professor of Law and Law Foundation Chair in
Aboriginal Justice and Governance, Faculty of Law, University of Victoria.
John Borrows 2005
To be cited as: (2005) 50 McGill L.J. 153
Mode de rfrence : (2005) 50 R.D. McGill 153
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Stephen Scott:
My Lords, ladies and gentlemen, my name is Stephen Scott, and I teach in this
Faculty.
[Vol. 50
Au nom du Ministre de la Justice, qui est reprsent ce soir par son sous-
ministre, Monsieur Morris Rosenberg, et de la Facult de droit de McGill, que
reprsente son doyen, le professeur Nicholas Kasirer, je vous souhaite la plus cordiale
bienvenue la cinquime confrence commmorative John Tait sur le droit et les
politiques publiques.
Je demanderais dabord au sous-ministre de nous adresser la parole au sujet de la
vie et de loeuvre de John Tait.
Morris Rosenberg:
Thank you, Professor Scott. I want to say first of all how happy I am to be back here
at McGill. It normally takes an hour and forty minutes to get hereit took us about
three hours today because of traffic and we just made it. I am very happy that we did
because I think this is a very important lecture and it honours the memory of John Tait.
In a minute I am going to tell you a bit about John Tait. I just want to note a couple of
people who are here tonight. Johns wife, Sonia Plourde, as well as Johns brother,
David, and his wife, Andre, are able to join us today, and I am very pleased about that.
Like Johns family, many colleagues and many friends, this institution no doubt also
takes great pride in the impressive legacy left by John Tait. As some of you may not
know, John Tait was an outstanding graduate of the McGill Faculty of Law. After John
passed away, we thought it would be apt to celebrate Johns legacy at the place where he
went to law school and the department where he spent six years as Deputy Minister.
So, I want to tell you a bit about John Tait, who was a truly kind and wise man, and
why through this lecture we think that it is important that we continue to honour and
remember him. John tait un juriste eminent et lun de nos fonctionnaires les plus aims.
John nous a laiss pour hritage son leadership, sa dvotion envers la fonction publique
ainsi que lenvergure extraordinaire de sa vision et de son integrit. Il a laiss sa marque
dans le dveloppement du droit et de la politique au ministre de la justice, quil a dirig
en tant que sous-ministre, une marque indlbile et dune immense porte qui continue
dinfluer le governement dans son ensemble, la collectivit juridique du Canada et bon
nombre dentre nous a titre personnel. John a vcu sa vie et pratiqu sa profession avec
le plus haut degr dengagement envers la justice et la dignit de tous les tres humains.
Au Ministre de la Justice, il a contribu a llaboration de la Charte canadienne des
droits et liberts1 de mme que celle de la Loi sur laccs linformation2 et la Loi sur la
protection des renseignements personnels3.
1 Partie I de la Loi constitutionnelle de 1982, constituant lannexe B de la Loi de 1982 sur le
Canada (R.-U.), 1982, c. 11.
155
J. BORROWS CREATING AN INDIGENOUS LEGAL COMMUNITY
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Johns work with the Aboriginal community, both during his tenure with the
Department of Indian and Northern Affairs, and later as Deputy Minister of Justice,
demonstrated the strength of his values and his foremost belief in the promotion,
protection, and respect of fundamental human rights. Throughout the 1980s and early
1990s, at a time when relations between Aboriginal peoples and government were
marked by difficulties and mistrust, John helped to modernize the governments
approach to its relations with Canadas Aboriginal peoples. He recognized that the
voice of the Aboriginal community had been muted and he opened the door to
inclusive consultations. Under his leadership, the concept of healing and sentencing
circles progressed toward the mainstream. Johns unique blend of sharp intelligence
and caring humanity won him the respect of those with whom he worked and those
whose lives he touched. John believed profoundly in our ability to shape the law to
build a more humane, peaceful, and respectful society. He was a seeker of new ideas,
fresh perspectives, and a strong proponent of Aboriginal rights. John would have been
particularly interested in hearing Professor John Borrows speak tonight on the topic of
Creating an Indigenous Legal Community. John would no doubt have listened
respectfully, reflected seriously, all the while contemplating how he could integrate
what he learned tonight in his own work and daily endeavours. Speaking personally,
having read Professor Borrows book last yearenjoying it very muchand having
had the pleasure of hearing him speak at the 2003 Cambridge Lecture Series, I look
forward to his remarks this evening. Thank you very much.
Stephen Scott:
introduce our guest speaker.
Thank you so much, Mr. Deputy Minister. I will now ask Dean Kasirer to
Nicholas Kasirer:
Chers membres de la famille Tait, Monsieur le sous-ministre Rosenberg,
Monsieur le professeur Scott, Monsieur le professeur Borrows, chers collgues du
Ministre de la Justice du Canada et de la Facult de droit de McGill, jai lhonneur et
le privilge de vous presenter notre confrencier pour cette cinquime confrence
John Tait, le professeur John Borrows, professeur la Facult de droit de lUniversit
Victoria et titulaire de la Chaire Law Foundation en Justice et Gouvernance
autochtone cette universit. En accueillant John Borrows McGill, je salue un ami
de la Facult, un ami de lassociation tudiante de droit autochtone dici et un
chercheur de renomme internationale.
One learns a great deal about a person by looking at how he or she holds himself
out as a jurist. Law professors tend to advertise their advanced degrees, their
professional qualifications, awards and distinctions, as so many badges on their
2 L.R.C. 1985, c. A-1.
3 L.R.C. 1985, c. P-21.
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professorial sleeves. John Borrows has more university degrees and distinctions than
most, but in his too modest biography he tells us who he is by starting with the fact
that he is an Anishinabe and a member of the Chippewas of the Nawash First Nation.
He is an Aboriginal scholar in a culture where scholarship is not always measured in
traditional ways, or at least, the traditions of scholarship are pursued outside the
confines of the ivory tower.
[Vol. 50
John Borrows confronted this paradox with candour and imagination recently in a
paper called Listening for a Change,4 dealing with the courts and oral history, so
critical, of course, to understanding indigenous law. That paper, which was published
a couple of years ago in the Osgoode Hall Law Journal, begins with a moving
personal narrative: an oral history recounted by John Borrows aunt.5 In that is a
message, I think, a powerful message of humility that resonates through John
Borrows work. He himself is a master of the Western scholarly mode. Indeed, he is
one of Canadas most prolific and imaginative legal scholars. But here he turns the
scholarly mode that he has mastered so well against himself. Il donne la parole sa
tanteand recognizes that his aunt, in some measure, is a jurist just as he is. The idea
that lawbe it scholarship, custom, title, rightsis to be found outside the usual sites
of state-sponsored normativity is, I think, one of the overarching themes in John
Borrows extraordinary contribution to Canadian law. Indeed, part of his work serves
to call into question what we mean when we think of Canadian law, challenging us to
move beyond the catalogues of cases and enactments that preoccupy lawyers
generally, and to reach in the spirit of legal pluralism for law expressed elsewhere: in
oral histories, and more broadly speaking, in everyday lives.
Son travail a une rsonance particulire McGill. Nous nous proccupons ici de
multiples traditions juridiques, de pluralisme juridique, et les rflections de John
Borrows sur la citoyenet autochtone par exemple sappuient sur la force du
droit autochtone en tant que tradition juridique. Nous rclamons donc John comme
lun des ntres. Un peu vaniteusement, sans doute, je vois dans son travail un dfi
lanc a la Facult de droit de McGill de se surpasser, daller au-del de la binarit
droit civil/common law dans lapprciation de ce quest le droit, pour faire une plus
grande place au droit autochtone.
In Professor Borrows recent scholarship he has added, at least in my reading, a
new dimension to his work, signaling his immense maturity as a scholar. He has
moved to a contemplative tone in his evaluation of Aboriginal justice. This links, I
think, the theme of public service, so present in the legacy of John Tait and this lecture
series, to John Borrows work, addingalongside the instrumental mission-oriented
work of the public servant in lawa speculative voice, so key to some of the finest
work pursued by colleagues in the Department of Justice today. Tonight, Professor
4 John Borrows, Listening for a Change: The Courts and Oral Tradition (2001) 39 Osgoode Hall
L.J. 1.
5 Ibid. at 2-5.
J. BORROWS CREATING AN INDIGENOUS LEGAL COMMUNITY
2005]
John Borrows will speak on Creating an Indigenous Legal Community. Please join
Mr. Rosenberg, colleagues at the Faculty of Law and of the Department of Justice in
welcoming our John Tait lecturer for 2004, John Borrows.
157
Stephen Scott:
Professor Borrows, the lectern is yours.
John Borrows:
Ahnee. Nigig Dodem. Kegedonce Nintishinikass. Neyaashiinigmiing Nintooci.
It is a great honour to be with you this evening to deliver this lecture in memory
of John Tait. I appreciate the introductions and the hospitality of the university and the
Department of Justice in inviting me to give this lecture. John Tait, for me, has always
represented pragmatism and practicality. When I was a graduate student at the
University of Toronto, I can remember a lecture that he delivered on indigenous
issues. He was Deputy Minister of Justice and Deputy Attorney General of Canada at
the time. It was 1990, early fall in Toronto, and we were gathered at the Toronto
Convention Centre. He was wearing a dark suit and a tie, and he had to speak on the
same panel as the leaders of Canadas national Aboriginal organizations. Most of the
people in the audience were representatives from these organizations. Given what had
just occurred through the Meech Lake Accord and some of the challenges that were
there, it was not a particularly friendly audience. But he stood forthright and delivered
a very constructive message. I can still remember his speech, pleading for practical
experiments to implement real change in Aboriginal communities.6 I have looked
back at some of the notes of the time. He said: We are now in a situation where the
constitutional agenda of the country is stalled for the foreseeable future. The concerns
of Aboriginal people, along with others, cannot be addressed until a means is found to
re-establish the dialogue.7 For John Tait, dialogue was to be re-established through
pragmatic experimentation. As far as I could tell, what he wanted to do was take the
facts on the ground, examine them in new ways, and come up with innovative
experiments to fit Canadas circumstances in that era.
It is in this spirit that I hope my remarks will be delivered this evening. My
subject is Creating an Indigenous Legal Community. I want to start from where we
are, and argue that we have a pluralistic indigenous legal community in Canada. Then
I want to talk about how we can build on this, and create an even stronger indigenous
legal community in this country. I think this is consistent with Johns approach:
building understanding through dialogue. He said in another report: If there is an
6 John C. Tait, The Constitutional Dilemma and the Two-Track Strategy in Frank Cassidy, ed.,
Aboriginal Self-Determination (Lantzville, B.C.: Oolichan Books, 1991) 41.
7 Ibid. at 44.
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image of how we wished our work to proceed and to be perceived, it is in the image
of an honest dialogue.8 He goes on:
[Vol. 50
An honest dialogue requires an ability to speak forthrightly about difficult
issues. This presents … important challenges … The first is that many of the
issues we wished to discuss are complex and sensitive. There are good reasons
why [we] often shy away from them. They can be painful and awkward to
confront and they can open up questions that may be difficult to handle.9
And there is no question that honesty and awkwardness are a part of dealing with
Aboriginal issues in this country. But he goes forward, If we wish to pursue an
honest dialogue we have to be prepared for the consequences … truth, or the whole
truth, is not known at the outset. It only emerges from the dialogue itself.10
A few years ago, I had the opportunity to work for three years with the elders in
Saskatchewan, dealing with the Office of the Treaty Commission, and gathered in
round tables discussing the oral history of their treaties. We were dealing, in
particular, with the peace and order clauses in the numbered treaties. At that
gathering, there was an elder who spoke, Elder Simon Kytwayhat of the Cree Nation.
He said something that is very similar, I believe, to what John Tait was trying to
communicate through this notion of honest dialogue. And it goes as follows:
A long time ago the Creator put a human being in this world. But then he
asked the animals to come into a circle and he asked them what he could do
to give this gift that he had for humans. He said this gift was special and he
did not want them to be able to find it too easily because otherwise they
would not be able to appreciate it. He said, I want them to work for it.
Where can I put it?
So the animals thought for a while, having been asked this question.
Eventually the grizzly bear spoke and said, I will take that gift and I will
take it to the mountains and hide it over there. And the council looked at
one another and seemed to nod in agreement. The Creator contemplated it
for a moment and then said, No, they are going to go there, and they are
going to find it. It will be too easy for them and then they will misuse it.
So, the council once again thought about this proposition of where this gift
should be placed. Then the big fish, kinosew, said, I will take it and I will
hide it at the bottom of the ocean. Again there seemed to be some
agreement from those assembled in council. The Creator, looking on,
8 Canada, Report of the Task Force on Public Service Values and Ethics, A Strong Foundation
(Ottawa: Canadian Centre for Management Development, 1996) at 3 (Chair: John Tait).
9 Ibid.
10 Ibid.
2005]
J. BORROWS CREATING AN INDIGENOUS LEGAL COMMUNITY
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thought, and said, No. They will find their way to that place. That gift will
be easily attained. They will misuse it.
Then the buffalo next spoke and said, I will take the gift to the berries and
I will hide it in the midst of them. Again, there seemed to be some
approval, although less forthcoming than before. Everyone turned to look
to the Creator. No, the people are going to go to the berries. They will find
it over there too easily and they will misuse it.
Finally, the eagle spoke up: I will take it to the moon. They cannot go
there. Once again, the Creator spoke: No, they are even going to go there.
They will find it and they will too easily misuse it.
After some moments of silence, finally, the little mole spoke up from
amongst the council, coming up from under the ground saying, Creator, let
me hide it. Let me take it some place. All the animals turned to look at the
mole and were quite concerned that he would dare raise his voice in this
gathering of the mighty. They wanted him to be quiet.
And then, Elder Kytwayhat said this, You know, sometimes, when we do not
listen to our people when they want to speak, we lose, because maybe they have an
answer.
And so the Creator asked the animals to give the mole a chance to speak.
Lets listen to him. Lets listen to the mole. So, they listened to him and
the mole said, Why dont you hide that gift inside those people? Place the
gift within them. Then, when they do the work that is required to find it
there, they will not misuse it.
And then Elder Kytwayhat concluded this teaching by saying, You know, when
we found that love there, and justice, and how to work together, and how to relate to
one another as brother and sister, and how to talk with one another, I think that that is
the way the elders looked at it, when they signed that treaty.
John Taits writings and Simon Kytwayhats teachings contain similar lessons.
Both invite us to listen to a plurality of voices to arrive at some sense of where truth
is.
It has been said that Canada is a bijuridical country. Bijuridical means a state of
facts: the co-existence of two contemporaneous legal systems in Canada.11 While this
concept is fair as far as it goes, it can also be problematic because it is underinclusive.
The phrase bijuridicalism, while helpful at one level, is also extremely limiting on
another level. On its face, it does not recognize the existence of more than two legal
systems operating in Canada. As such, it may prevent us from acknowledging the full
11 Marie-Claude Gervais, Harmonization and Dissonance: Language and Law in Canada and
Europe in Department of Justice, ed., Bijuralism and Harmonization: Genesis (Ottawa: Minister of
Justice and Attorney General of Canada, 2001) at 10.
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weight of our legal inheritance as Canadians. Bijuridicalism is an incomplete model of
dialogue, linguistically, juridically, and culturally.
[Vol. 50
We can do better. Numerous indigenous legal traditions continue to function in
Canada in systemically important ways. They influence the lives of indigenous and
non-indigenous peoples. Canada would be better described, as Nicholas Kasirer said,
as multijuridical or legally pluralistic. The continued existence of indigenous law
requires a pluralistic approach to understanding the relationships between Canadas
many legal traditions. This reminder should carry us beyond bijuridicalism to search
for more accurate and inclusive ways of describing the state of Canadas legal
inheritance.
This task is not beyond possibility. In fact, it is the state of facts on the ground.
We have recognized this before. In the first year of Canadas confederation, the
Quebec Superior Court affirmed the existence of Cree law on the prairies and
recognized it as a part of Canadian law: this is the Connolly v. Woolrich12 case. In
expressing this recognition, Justice Monk wrote: Will it be contended that the
territorial rights, political organization, such as it was, or the laws and usages of the
Indian tribes, were abrogated; that they ceased to exist, when these two European
nations began to trade with the aboriginal occupants?13 He poses the question, and
then answers, In my opinion, it is beyond controversy that they did not [cease to
exist], that so far from being abolished, they were left in full force, and were not even
modified in the slightest degree.14 This doctrine applied by Justice Monk is known as
the doctrine of continuity. Indigenous legal traditions have continued through
Canadas history.
Indigenous law flows from sources that lie outside of the common law and civil
law traditions. As described in 1973 in the Calder15 case by the Supreme Court of
Canada, such a unique source resides in the fact that when the settlers came, the
Indians were there, organized in societies and occupying the land as their forefathers
had done for centuries.16 These laws have no need for dependence on treaty,
executive order or legislative enactment.17 They are pre-existing and have their
own logic, as the Court said, indigenous to their culture [though] capable of
articulation under the common law.18
12 Connolly v. Woolrich (1867), 17 R.J.R.Q. 75, 11 L.C. Jur. 197 (Qc. Sup. Ct.) [cited to R.J.R.Q.].
13 Ibid. at 84.
14 Ibid.
15 Calder v. British Columbia (A.G.), [1973] S.C.R. 313, 34 D.L.R. (3d) 145 [cited to S.C.R.].
16 Ibid. at 328.
17 Ibid. at 318.
18 Ibid. at 375.
J. BORROWS CREATING AN INDIGENOUS LEGAL COMMUNITY
2005]
The Supreme Court of Canada has recognized this fact on many occasions in the
past few years. In Mitchell,19 Chief Justice McLachlin, writing for a majority of the
Court, said:
161
European settlement did not terminate the interests of aboriginal peoples
arising from their historical occupation and use of the land. To the contrary,
aboriginal interests and customary laws were presumed to survive the assertion
of sovereignty, and were absorbed into the common law as rights.20
So, indigenous laws continue to exist in Canada, as Chief Justice McLachlin
wrote in Mitchell, unlessand there are three qualificationsunless: (1) they were
incompatible with the Crowns assertion of sovereignty, (2) they were surrendered
voluntarily via the treaty process, or (3) the government extinguished them.21 Now
these are questions of fact, but most indigenous legal traditions, in my view, are
compatible with the Crowns assertion of sovereignty. There is a wide degree of place
for interaction and intertwining of indigenous legal values and the values found in the
common law and in the civil law. It is often overstated that indigenous lifeways are on
one side, non-indigenous ways are on the other side, and that there is no point of
meeting between the two. I think it is also fair to say that many indigenous legal
traditions have not been surrendered by treaties and have not been clearly and plainly
extinguished by the Crown. Indigenous law exists today.
It is important, however, to recognize that indigenous law is not simply something
that continues to apply in Aboriginal communities. It is more than just private or
Aboriginal community law. Indigenous law is also a part of Canadas constitutional
structure. Indigenous legal traditions shape and are embedded within our national
legal structure.
When people came from other continents and arrived on the shores of North
America, First Nations laws, protocols, and procedures often set the framework for
the first treaties between Aboriginal peoples and others.22 These treaties were entered
into on Aboriginal legal terrain. In the early 1700s, the French entered into treaties
with the Anishinabek of the Great Lakesthose are my people: the Ojibwa and the
Chippewaand they did this by Anishinabek forms: wampum belts and ceremony.
On the east coast, from 1685 until 1779, the peace and friendship treaties between the
Mikmaq, Maliseet, Passamaquoddy, and the British Crown used similar principles
grounded in indigenous protocols, procedures, and practices. In 1764, when the
British were able to assert an interest in North America after the Seven Years War,
they used indigenous legal traditions to transact their business and to bind themselves
to solemn commitments.
19 Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 199 D.L.R. (4th) 385 [cited to S.C.R.].
20 Ibid. at 927.
21 Ibid. See also Brian Slattery, Understanding Aboriginal Rights (1987) 66 Can. Bar Rev. 727.
22 See Robert A. Williams, Linking Arms Together: American Indian Treaty Visions of Law and
Peace, 1600-1800 (New York: Oxford University Press, 1997).
[Vol. 50
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Many of you are familiar with this history. There was a war between the French
and the English. In this war, indigenous peoples were largely allied with the French.
When the French were defeated, the indigenous nations acted independently in the
way peace was transacted with the British Crown. Governor Murray, in a case that
you can read about called Sioui,23 was able to enter into some treaties with the Wendat
(Huron) people living around Quebec City. Many indigenous peoples throughout the
Great Lakes areas said to the British, Englishmen, although you have conquered the
French, you have not conquered us. These lands, these forests, these lakes remain
ours. And we will not part with them. And then these nations gave the British a
choice: They could take up the hatchet, as the metaphor goes, or they could take up
the pipe of peace and enter into a different kind of relationship. It was at that point
that all of the forts the British had in the Ohio Valley were threatened. Many of them
fell because of Aboriginal military might. The British, at that moment, recognized
they could not just do what they wanted when entering into North America: they
needed to somehow engage these people. And so, in 1763, King George III issued the
Royal Proclamation.24 This document, an executive proclamation, said to the Indians,
We will leave these several tribes and nations unmolested and undisturbed. We will
not take your land unless this is done through a public ceremony. We will also not
allow local settlers or local governments to transact this business of transferring land
from yourselves to us. The distant imperial authority was the one to be empowered
to take land and enter into treaty relationships.
But the British had just been at war against First Nations. Why should the Indians
trust this piece of paper when it was not of anything according to their own making?
So Sir William Johnson, who was the Superintendent of Indian Affairs, the lead
colonial official dealing with Indian affairs in colonial North America, said, We must
bind them according to their own protocols, their own understanding. He sent
runners from the Algonquin Nation with strings of wampum, which were beads that
were sewn onto hide, to go and invite First Nations living around the Great Lakes area
to come to a meeting the following summer in Niagara. These runners found
themselves in Quebec, here along the river. They found themselves in the Maritimes
area, in what became New Hampshire and Vermont and New York State, Ohio, over
into Michigan and Wisconsin and Minnesota and Ontario, and out into Manitoba. You
can read the journals of the traders that were there among the Indians in the winter of
1763 to the spring of 1764. You can read about what they said in their councils as to
whether or not they should have this relationship with the British. They did agree to
assemble, however, and two thousand First Nations people gathered there in 1764 at
the Crooked Place, as they called Niagara, representing 22 different Nations. There
they entered into an agreement that demonstrates the building upon indigenous legal
protocols using indigenous legal traditions.
23 R. v. Sioui, [1990] 1 S.C.R. 1025, 70 D.L.R. (4th) 727.
24 George R., Proclamation, 7 October 1763 (3 Geo. III), reprinted in R.S.C. 1985, App. II, No. 1.
163
J. BORROWS CREATING AN INDIGENOUS LEGAL COMMUNITY
2005]
I have a replica of the agreement from this time (showing wampum belt). This
was one of many wampum belts circulated through the Council that took place in
1764. The white beads of this belt represent that the parties were to live together in
peace, friendship, and respect. In other words, the first legal act that the Crown
undertook in dealing with the First Nations populations was on the Indians terms, in a
way that expressed a desire, a hope, and an aspiration to live together. This was about,
in some sense, integration, peace, friendship, and respect. In fact, the motif is
continued as there are three white rows that separate these other two purple rows.
Again: peace, friendship, and respect. But it was not all just about sharing. The
agreement also spoke about Aboriginal peoples travelling down their River of Life in
their canoe, controlling their own affairs, and non-Aboriginal peoples travelling down
their River of Life, in their ship of state, controlling their own affairs. There was a
measure of autonomy recognized in this relationship. At the same time, there was a
recognition that there was going to be sharing. The other belts that were a part of this
gathering reaffirm this meaning. I think it is quite significant that the first act that
bound people together in what became Canada was an act aimed at the rule of law,
aimed at drawing on the traditions that were already there. It was these traditions that
infused and gave life to what the British wanted to do in North America.
Since that time there have been over 500 treaties in Canada, with many of them
drawing on some form of indigenous legal tradition, even in later eras when
indigenous peoples enjoyed less political influence. When I was meeting with the
elders in Saskatchewan, again, around the peace and order clause, they talked about
gathering in those councils, having beforehand consulted among themselves
according to their traditions, having used their sacred medicine bundles, having used
their pipes, and then when they met with the representative of the Crown, having a
pipe ceremony, which was the most significant relationship that you could enter into
between peoples on the prairies, with the Cree, the Lakota, the Dakota, the Nakota,
the Dene, the Saulteaux, and the Blackfoot. These pipe ceremonies were regarded in
many ways as being the heart of the agreement. And then the elders spoke to me about
the words that would be used in conducting these pipe ceremonies: Wahkohtowin,
Miyo-wicehtowin, Pastahowin, Ochinewin. These concepts rooting Aboriginal
world views and then sharing them with the Crown, and the Crown bringing their
view to the engagement. First Nations laws, legal perspectives, and other indigenous
frameworks have been present throughout the entire span of treaty making in Canada.
Since 1982, existing treaty rights have been recognized and affirmed in the
Constitution Act,25 thus enjoying the highest possible status in Canadas legal order.
The continuation of treaty rights and obligations entrenches the continued existence
of indigenous legal traditions in Canada. These past few weeks I found myself in
Nunavut and in the Yukon. These agreements, although written in texts that look very
familiar to us trained in the Western law, also find expression in these indigenous
25 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
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legal communities, whether you are dealing with the Kaska people in the Yukon, or
the Inuit people in Nunavut.
[Vol. 50
First Nations peoples, however, 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. You and I both have treaty rights, or should
have. I have treaty rights in Ontario as a result of the activities of my great-great-
grandfather, who signed a treaty dealing with the Bruce Peninsula area in 1854. If you
are from many parts of Canada, you also have treaty rights. If you live in the Quebec
region, if you are a Wendat person, some of your rights extend from what the Huron
did on their side of the equation. If you are Qubcois or Qubcoise, if you are living
in this territory, you also have treaty rights that extend from what Governor Murray
did at that time. If you are from northern Quebec, your treaty rights flow from actions
in the early 1970s between the Crown, Cree, Montagnais, and Inuit. The mutuality of
indigenous and non-indigenous peoples as treaty beneficiaries is often overlooked
because it is most often indigenous peoples striving to assert their rights. Yet there are
a number of potential inheritors of treaty rights beyond indigenous nations, bands, and
individuals. The British and Canadian Crowns certainly received many benefits from
the treaties. Their citizens were able to peacefully settle and develop most parts of the
country on a footing of consent. Non-indigenous Canadians trace many of their rights
to do certain things in this country to the consent that was granted to the Crown by
indigenous peoples in the treaty process.
Now, I realize this is a controversial point. It is not controversial looking at it
from what my family told me about what my great-great-grandfather did, or what I
heard from the elders in Saskatchewan. However, let us consider the alternatives if we
do not create Canada based on consent: we have the options of discovery, conquest,
and adverse possession or occupation. Discovery is the power by which rights to land
are claimed based on European arrival in North America. That is a challenging
concept, logically, because prior to the arrival of Europeans, indigenous peoples had
already discovered these lands. What would give the Europeans or another power a
right to claim land through discovery if it was not some notion of superioritythat
the rights of Europeans were somehow greater because of who they were and because
of the legal traditions that they brought with them? This notion of discovery has been
rejected in the Island of Palmas Case,26 and the Eastern Greenland Case.27 We could
say that conquest is another measure of Canadas creation. But there are a couple of
points that have to be made. First, the facts on the ground do not often support a
finding of conquest. Aboriginal peoples did not enter into large-scale wars with the
British Crown here, in northern North America. The second thing to consider about
conquest, at least as it is articulated under international law, is that when there is
conquest, the rights of the people remain untouched, so that you would still have the
continuation of indigenous legal traditions even under that formulation. What about
26 Island of Palmas Case (1928), 2 R.I.A.A. 829, 4 I.L.R. 3.
27 Legal Status of Eastern Greenland Case (1933), P.C.I.J. (Ser. A/B) No. 53.
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adverse possession? Should being on someone elses land for a certain period of time
create rights? Well, you need quiet possession to establish rights in this way, but
indigenous peoples strongly dispute people claiming rights against them without
entering into any relationship with them. So, it may be controversial to say that
indigenous legal traditions are part of Canada, that many of the rights enjoyed by non-
indigenous Canadians are based on consent, but the alternatives leave much to be
desired. Consent is a better foundation.
165
As the Supreme Court of the United States recognized in the Winans28 case, treaty
rights are a grant of rights from the Indians, not to the Indians.29 As we already noted
in the Mitchell30 case, indigenous peoples have rights and jurisdiction until those
rights are expressly ceded or extinguished.
The Crown did not represent treaties as being temporary when they were signed.
They were to last as long as the grass grows, the river flows, and the sun shines. The
honour of the Crown should be preserved. Their representations should be taken at
face value, as they would naturally be understood by the Indians.31 Justice Black of
the Supreme Court of the United States said in the 1960s about US Indian treaties,
Great nations, like great men, should keep their word.32
Furthermore, treaties do not just have to be about history or the past. In fact, they
should not just be about history or the past. They should be living agreements,
promises about a future to which both parties aspire. If treaties were not lived up to in
their first hundred years, that does not mean they should be discarded today. I have
taught contract law in the past: its prime function is to protect promises relating to a
future state of affairs. If law can do this for individuals and for corporations, then why
not for nations? Treaties are capable of applying to the most recent immigrant from
Jamaica, the old Ontario family of Scottish heritage, a Qubcois family settled since
1650, as well as people from my reserve.
As the Supreme Court of Canada noted in Sparrow, it is crucial to be sensitive to
the aboriginal perspective itself on the meaning of the rights at stake.33
I hope I have made my first point: indigenous laws continue to exist in Canada.
But I believe that recognition is just the first step. We should be more active in
cultivating this indigenous legal community of which we are all a part. Of course, I
am using indigenous in two ways as I make this point. I believe that Aboriginal
legal communities should be strengthened, but I also believe that Canada can become
more fully indigenous, more fully rooted in this place and less rooted in its colonial
28 United States v. Winans (1905), 198 U.S. 371, 25 S. Ct. 662 [cited to U.S.].
29 Ibid. at 381.
30 Supra note 19.
31 Jones v. Mechan, 175 U.S. 1 at 11 (U.S.S.C. 1899). See generally R. v. Marshall, [1999] 3 S.C.R.
456 at para. 78, 177 D.L.R. (4th) 513.
32 Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 at 142 (U.S.S.C. 1960).
33 R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1078, 70 D.L.R. (4th) 385.
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past if it acknowledges, adopts, and creates laws that are founded in the experiences
that they have had in these territories that now make up Canada.
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In December of 1996, John Tait wrote a report entitled A Strong Foundation.34 It
was written to help the public service to rediscover and understand its basic values
and assist the public service to recommit to and act on those values in all its work.35
He said something which I think is absolutely profound:
We do not learn about the good from abstractions but rather from encountering
it in real life, in the flesh and blood of a real community, and real people.
Values are sustained by a community that believes in them and sees them acted
out daily, in both concrete and symbolic actions. This points to the importance
of leadership and of role models.36
In this vein, I think that much can be done to pay attention to the values that are
on the ground as we attempt to integrate common law, civil law, and indigenous
legal traditions. This diversity of sources can throw new light on old problems. One of
the things that we hold up to the world as Canadians is a sophisticated pluralism,
being able to work back and forth between the common law and the civil law. It gives
us access to other countries with this mix, either belonging to a civil law or a common
law tradition. Bijuridicalism allows us to play some role on the world stage. But think
of what we could gain if we extended that analogy and included indigenous legal
traditions as part of our inheritance. How many countries in the world function not
just as civil law, or common law jurisdictions, but also find themselves with
indigenous legal traditions in their mix? We have something unique in the world: the
ability to say that these traditions are founded on consent.
I want to illustrate how I think this process of creation or recreation needs to
occur. If I want answers to Anishinabek questions, I could go to the courts, read
legislation from the library, or I could talk to some learned colleagues. I could also go
to a legal source within my community. Anishinabek communities use precedential,
standard-setting criteria to guide and judge action. For example, here is a story that
deals with a woodland character known as Nanabush, who is a trickster character:
Nanabush was walking from village to village when he noticed that the air
was devoid of laughter. Everywhere he went, silence seemed to follow. Yet
the sun shone brightly, the breeze was fragrant, and the smell of fresh pine
was in the air. Even the moon stood out against the blue azure sky. He
wondered, Why no laughter? This is such a beautiful day. Nanabush was
curious.
So as he approached a small encampment, he thought about how this place
looked so empty. The dogs that should have been playing around the site of
34 Supra note 8.
35 Ibid. at 1.
36 Ibid. at 2.
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the camp were missing. There were no mothers by the fire, no men working
at the nets needing repair. Then as he searched around he finally saw some
movement inside one of the shelters. He peeked inside the lodge and saw
someone moving: slow, weary. He called out Ahnee! How are you?
Inside, a woman with bright dark eyes was sitting with her grandchildren.
Others were slouched against the walls. The grandmother leaned forward
with great effort. Nanabush, what brings you here? We are so tired.
Nanabush looked for a moment, and saw the state that they were in. I
wanted to see how everyone was, the land was so quiet. Where is
everyone? Why are you so tired?
Then she spoke, It is our children. They are so sad. They say they have
nothing to do and they mope around the lodge all day. They have affected
everyone. No one feels much like doing anything with them all being so
sad.
Nanabush thought about this for a while as he walked away from the home.
Then he heard a sound coming lightly over the breeze. It was the closest
thing that he could hear to laughter. It was a brook, a small stream. As the
rocks tumbled over one another, they gave a mimicry of laughter. He
walked to the source of the sound. He looked at the rocks and the pebbles
and the sand lying in the bed of the stream and pondered their effect on the
water. He walked along the banks, gathering a few small coloured stones as
he went and he filled his pouch. With that, he walked back to the centre of
the village.
Ahnee! he called. Come. See. Wagwahge. He was calling them to the
centre place where the fire was almost extinguished in the middle of their
village. The people again seemed sad. Slowly, wearily, they came out of
their shelters. When everyone was there, curious, they looked at what
Nanabush was calling them for. Nanabush at that point reached into the
pouch that he had and grabbed a handful of stones and stood there before
the people and flung them into the air. Everyone at that point stood back
thinking that Nanabush had tricked them again, that they were going to be
rained down on by these stones that were now hurled up. But they looked
up, as they were in this mode of anticipation, and as they looked up, as each
stone reached its zenith, it transformed.
In their fall, each one became nearly weightless, changed in midflight.
Some were yellow, some were turquoise, orange, and green. Some were
mixed, iridescent in the sun. Soon they started to flutter, catching the
currents in the air above the circle. Eyes went wide below. The children
started to smile and reached their hands into the air to try to catch them,
though each butterfly seemed to be just out of reach. As they gathered
energy, laughter could be heard from the tiny voices of the children
gathered around Nanabush. The adults began to join in the chase. Grins
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broke out. Mothers and fathers playfully tussled with their kids, sometimes
lifting them high into the air to try to catch these butterflies. The dogs
eventually entered the fray, barking and weaving between the legs of the
people in the village. And the butterflies sailed on, over and around the
people, wherever they could be found. A reminder of the gift of laughter,
and the beauty and joy that life brings.
I tell this story for a couple of purposes. One is that we have legal values within
our communities to which we can turn to answer some of our pressing problems.
Nanabush turned to what was there, what was familiar, what was nearby, and he was
able to take those things that were familiar and nearby and transform them
transform them in such a way that he got people involved with what was going on in
the community. We have a real crisis in the rule of law in Aboriginal communities; it
is not a crisis because Aboriginal peoples do not have the rule of law, it is a crisis of
legitimacy about the rule of law in Aboriginal communities. If Aboriginal peoples
were able to start to see themselves and their normative values reflected in how they
conduct their day-to-day affairs, I believe that would go at least some distance to
diminishing some of our problems. It is not the whole solution, but it is a part of the
solution.
As the Court said in the Manitoba Language Reference,37 the rule of law is a
normative order that sustains legality and legitimacy, and prevents anarchy, chaos, and
disarray. Many of our communities are in a place of disarray because those values are
not fully grafted onto how people are living their lives. Non-Aboriginal values have
disruptedbut not replacedour ancient traditions. If Aboriginal peoples were to
more fully exercise their legal traditions, the state has traditionally wondered whether
this would diminish Canada and threaten the territorial integrity of the country.
I spent some time down in Arizona as the executive director of the Arizona State
University Indian Legal Program and participated in judicial education with tribal
court judges. The country is not broken up because indigenous peoples have tribal
courts and exercise the rule of law. In fact, most of the statutes tribal councils adopt
are modelled on state statute, but every once in a while they will make a modification,
change, or amendment to reflect their legal tradition. When tribal courts decide on a
statutes interpretation, they follow many of the legal categories operating in the
United States generally. At the same time, they are able to add their own twist to make
it a fully contemporary tradition. Tradition can be the dead faith of living people or
the living faith of dead people. Tradition has to live today in peoples lives to be
relevant.
The way traditions live in, say, the Navajo community is informative. They had
their most pressing constitutional crisis about twenty years ago now when the tribal
president was charged with taking kickbacks and bribes from uranium and coal
37 Re Manitoba Language Rights, [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1.
169
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mining occurring on the reservation. As a result of these actions, he was charged,
found guilty, and the tribal council suspended him without pay. The tribal president in
effect said, You cannot do that, that is beyond your jurisdiction, there is a separation
of powers within our constitution. This could have destroyed the Navajo nation. It
was taken to their courts, who took their statutes and talked about the responsibilities
that a president has within their legal community. Then they took the common law of
trust and the political trust doctrine and spoke about that as another source of
authority to add to the decision-making process. But then they took the story of the
Naataaniis. When the Navajo were placed within the four corners of their sacred
mountains, there was a battle between the hero twins. At the end of this battle there
was a truce, which led to some agreement as to how leaders should act with their
people. In fact they were the servants of the people, and were not to stand out in front
of the people. This court blended these three legal traditions together. Was it less
Navajo because they used statute and trust law? No. It was a contemporary
application and I think that can be the case in creating an indigenous legal community
within Canada.
We can take many of these legal traditions and have them live in a contemporary
form. I want to talk about one particular example of a law coming from our
community in 1838. It was recorded by Jarvis, who was the Superintendent of Indian
Affairs. It is actually a case about capital punishment, so it can be very challenging. I
want, though, to be able to draw the principles out of this case rather than focus on the
capital punishment aspect. It goes as follows:
He came among us the very beginning of last winter, having in the most
severe weather walked six days without either kindling or fire or eating any
food.
During the most part of the winter he was quiet enough but as the sugar
season approached he got noisy and restless. He went off to a lodge and
there remained ten days, frequently eating a whole deer at two meals. After
that he went to another lodge when a great change became visible in his
person. His form seemed to have dilated and his face was the colour of
death. At this lodge, he first exhibited the most decided professions of
madness and we all considered that he had become a Windigo. He did not
sleep, but kept on walking around in the lodge saying, I shall soon have a
fine feast. Soon this caused plenty of fears in the lodge among both the
young and the growing. He then tore open the veins of his wrist with his
teeth and drank his blood. The next night was the same. He went out from
the lodge and without an axe broke many saplings about nine inches in
circumference. He never slept but worked all that night, and in the morning
brought in the poles he had broken up and in two trips filled a large sugar
camp. He continued to drink his blood.
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If I were in law school, I would say these are the facts of the case: the community
is encountering a tense situation, where someone is being both threatening to others
and self-destructive. So now let us look at the legal principles they followed to
confront their problem.
[Vol. 50
The Indians then all became alarmed and we started off to join our friends.
What a great first foray to be able to try to deal with a pressing challengefriendship:
The snow was deep and soft and we sank deeply into it with our new shoes,
but he without shoes or stockings barely left the indent of his toes on the
surface. He was stark naked, tearing off his clothes as fast as they were put
on. He continued drinking blood and refused all food, eating nothing but
ice and snow.
Now the next legal principle, counselling together:
We then formed the council to determine how to act as we feared he would
eat our children.
Next legal principle:
It was unanimously agreed that he must die.
Unanimity. Next legal principle:
His most intimate friend undertook to shoot him, not wishing any other
hand to do it.
This was not an act of retribution or fear, this was an act of compassion, love, and
friendship.
After his death, we burned the body and all was consumed.
Another legal principle, restoration to the individual:
The lad who carried into effect the determination of the council has given
himself to the father of him who is no more, to hunt for him, plant, and fill
the duties of a son.
Next legal principle, communal restoration:
We have also all made the old man presents and he is now perfectly satisfied.
And then Jarvis concludes:
This deed was not done under the influence of whiskey. There was none
there. It was the deliberate act of this tribe and council.
Now, if we were to take this legal case and apply it in todays circumstances, I
think it is quite obvious that as Anishinabek people, we recognize that mental illness
is a severe issue, and that it would be dealt with through other means. There are
medical, there are social, there are community places to help someone who finds him
or herself in that situation. I do not want to get caught up in this case being about a
J. BORROWS CREATING AN INDIGENOUS LEGAL COMMUNITY
2005]
Windigo, as it relates to mental illness and capital punishment. A Windigo can stand
for other things: a Windigo is someone who is intemperate, never satiated in their
hunger, always full of appetite, continually consuming that which is around them.
There are Windigos in our communities, they are just of a different form. This case
can help us figure out some answers to our pressing questions: go with our friends;
form a council; be unanimous; and act in such a way that you take responsibility for
the decision you make.
171
Could you imagine a judge, passing a sentence and then having to go stand in the
shoes of the person that is affected by the sentence that he or she has just passed?
There is a different kind of approach in this sentencing responsibility.
There are things that can be done to create an indigenous legal community by
paying attention to the ideologies within indigenous communities. These ideas are not
just of benefit to Aboriginal peoples but can conceivably benefit all Canadians. What a
vibrant country we live in to have access to different legal standards under the civil law
and under the common law. Although they are sometimes similar, sometimes they
present different answers. To go to another tradition and realize there is further guidance
and wisdom from which we can learn is, I think, an incredible, imagination-opening
idea, one that exists there on the ground, and that could help create a legal community.
Law schools could be doing more to profoundly affect our notion of our legal
inheritance. I really admire what is happening here, at this university, in trying to integrate
both common law and civil law in the legal education experience. I look forward to the
day when there is a law school that does the same with Aboriginal legal traditions.
When I teach indigenous lands, rights, and governance, I teach Anishinabek
law each and every single class. I look forward to the day when Anishinabek law is
front and centre. The University of Victoria has the Akitsiraq Law School in
Nunavut with some excellent students. I was able to spend four months there in
2003. I would teach contract law and I would try to supplement it with Inuit legal
materials, and try to supplement it with land claims, framework legislation, and
agreements, but I could only do so much. The students had a role. They would take
what I taught them and they would speak among themselves in Inuktitut and keep
me filled in with what they were learning and then throw it back at me. Through
that iterative process, we would come up with the legal concept under contract law.
There was also a role for elders. When I would leave for an hour and a half, Lucien
would come in and, as an Inuit elder, would teach them the law of obligations from
an Inuit perspective. When these students graduate, they will have an opportunity to
try to make their multijuridical education a reality in the territory of Nunavut. This
shows how there are things that we can do in legal education to help create an
indigenous legal community: it should not just be the far northit should permeate
throughout our communities.
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A lot has been done through harmonization in the past few years. There is the
Federal LawCivil Law Harmonization Act, No. 138 that came into effect on 1 June
2001. According to section 8.1,
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Both the common law and the civil law are equally authoritative and
recognized sources of the law of property and civil rights in Canada and, unless
otherwise provided by law, if in interpreting an enactment it is necessary to
refer to a provinces rules, principles or concepts forming part of the law of
property and civil rights, reference must be made to the rules, principles and
concepts in force in the province at the time the enactment is being applied.39
I imagine creating an indigenous legal community with some kind of
Harmonization Act, with an associate or assistant deputy minister of justice attached
to it who has the resources to work out how these things can be compatible and not
tear apart but strengthen our fabric as a country.
There are things the civil service could do in creating an indigenous legal
community. I had a wonderful opportunity last January to be able to go across the
country and perform an Aboriginal cultural audit of the Department of Justice. There I
met Aboriginal employees, non-Aboriginal employees, and managers in Montreal,
Toronto, Iqaluit, Winnipeg, Saskatchewan, Edmonton, Vancouver, and spoke to
people in Whitehorse, Yellowknife, and Halifax. I got this sense of a very deep, rich,
and educated group of people that have a profound interest in Aboriginal legal
issuesboth Aboriginal and non-Aboriginal people. It was a great blessing and
privilege to meet these people and see the good work that was being done as they
were going from place to place.
Things can be done in the public service to follow what John Tait was saying:
taking the state of facts as we find them and moving forward. There are things the
judiciary and law societies could do to develop an indigenous legal order in Canada.
The Ojibwa have a law about how to learn. Their word for look is Nuh: if you
were walking through the forest and someone said Nuh, you were not just to look
by visually focusing your eyes on what surrounds you. You were to literally try to see
and feel out of all parts of your body, to take it all in, to look with all your being and
to discover what is there. I think that as we approach the creation of an indigenous
legal community, it is important that Nuhthat we lookthat we engage not just
with what we visually see with our eyes, but with the vast reservoir of feeling and
emotion that is attached, with how people want to live in their communities, by their
values, through their laws, and work with one another through peace, friendship, and
respect.
I appreciate your attention and I am really glad to be here. Thank you very much.
38 S.C. 2001, c. 4.
39 Ibid.
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2005]
Stephen Scott:
Thank you, Professor Borrows. We have some time for questions. There are
microphones on either side of the room. It might be helpful if you identify yourselves
when you ask the question, although that is not necessary. Are there some questions in
the house?
173
Question 1:
Audience Member:
Im a third year student here at McGill. One of the things that I
just want to hear your views on was, short of the government
passing laws saying Aboriginal legal traditions should be taken into
account, courts are left with the large and important issue of proof. I
just wanted to hear your thoughts on proof in such cases.
John Borrows:
Well, there are a couple of points to make. First of all, the court has a legal
framework to receive indigenous legal traditions. They call the law dealing with
Aboriginal rights sui generiswhich means it is unique and of its own kind. The
court said in the Simon40 case that when you interpret treaties, you look to
international law by way of analogy, but that is not determinative. The court said in
the Delgamuukw41 and Van der Peet42 cases that Aboriginal law is a source to which
the courts look to determine answers to questions before them. The idea is to
reconcile indigenous and non-indigenous legal traditions by paying attention to the
Aboriginal perspective on the meaning of the right at stake. In Van der Peet, they said
a morally and politically defensible conception of Aboriginal rights will incorporate
both legal perspectives. So there are doctrines the court can use to engage in that
exercise; they do not have to wait for further legislation or constitutional amendment.
There is a challenge about education and about judges being able to recognize
Aboriginal law when they see it and not devalue it because they are more familiar
with applying the civil law or the common law tradition.
In terms of proof, that is an interesting question. If you are trying to prove title, or
prove a right, what are the standards you look back to? Part of what I am suggesting is
that Aboriginal law should not just be received as evidence that Aboriginal peoples did
something in the past on a piece of land. It is more than evidence: it is actually law. And
so, there should be some way to bring to the decision-making process those laws that
arise from the standards of the indigenous people before the court. It is a challenge,
though, to move something from evidence into law and perhaps back again.
40 R. v. Simon, [1985] 2 S.C.R. 387, 24 D.L.R. (4th) 390.
41 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193 [Delgamuukw].
42 R. v. Van der Peet, [1996] 2 S.C.R. 507, 137 D.L.R. (4th) 289 [Van der Peet].
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Question 2:
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Audience Member:
I am just going to follow up and maybe ask for something more
specific in the sense that from my understanding the courts are
taking a fairly narrow reading of the issue of proof, and in fact
using common law or civil law evidence rules to interpret proof
brought by Aboriginal peoples. How could that be moved forward
in the vein that you are arguing for, short of educating the judges?
John Borrows:
You could have an amicus curiae appointed to argue the law on the point. You could
have an intervener bring to the action the Aboriginal legal perspective on the meaning of
the rights at stake. You could have Aboriginal and non-Aboriginal lawyers learn the law
of their clients, and not just introduce Western law into the legal argument (such as Van
der Peet and Delgamuukw), but Nanabush and the butterflies, etc. They could say,
Here is the broader ground upon which we invite you to make your decision.
Question 3:
Audience Member:
I was lucky enough to be one of your pupils, and I subscribed
very early to the idea you propose about merging Aboriginal law
with modern Canadian law. I find myself in a situation today.
Currently, I am the secretary of the Cree government of James Bay.
I have some concerns and would like your opinion.
The Cree government of James Bay is composed of chiefs from
nine communities. They act through four corporations that exist
under federal and provincial laws: some are legislated, some are
under the Canada Business Corporations Act,43 or Loi sur Les
Compagnies.44 We created recently another corporation through
which this government can act.
We are sitting in a meeting one day and it got to the point that
the Grand Chief was saying, Look, we are switching hats every
five minutes, we are doing notice, agenda, … I do not even know
what board we are at this moment. So I told him, Why do you not
just do the meeting the way you want to do it. Following the
meeting, the treasurer, the executive director, and I will sit down,
43 R.S.C. 1985, c. C-44.
44 L.R.Q. c. C-38.
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figure out what everyone said, and put it in the right boxes. Ok, you
guys made something that is a federal decision, we will put that
under the Grand Council that is federally incorporated. You did
something that was provincial, we will put it under the minutes of
another head. So we went ahead just doing it that way. It made his
life much easier because he got to stop announcing every five
minutes that we have switched entities.
The great thing that came out of that was now our meetings are
in our own language. Because we do not have to say, Who is
proposing the resolution, which does not translate well in Cree or,
Who is seconding. The rules of the corporate bylaws and the
Canada Business Corporations Act itself with regard to who can
address the meeting were pushed away and anybody who is at the
meeting speaks according to traditional rules. In that sense, I am
very pleased in that it has just crept in and happened very quietly. It
has been an empowering event and has happened very, very subtly.
The part that concerns me is that it is not happening at an
institutional level and sometimes I question whether I have done
something wrong here, in the sense that I have separated the two
groups more than anything. Because now they are not dealing on a
daily basis with the Canada Business Corporations Act; it is myself
plus two other administrators that do that. For the time being, I am
comfortable with it but I am wondering if in the long term we are
doing more damage than good because we are having a sort of
separation occurring where we have got a small group of people
acting as traffic police?
John Borrows:
Great question, thank you. Interesting note: common law changes by the very fact
that you are trying to articulate something in Cree. There is a Cree court in Northern
Saskatchewan that Justice Gerald Morin runs and it is all in Cree. The lawyers are Cree
and the court reporters are Cree. Just that very act alone changes it because, as you
know, Cree language divides the world between things that are living and things that
are not living, rather than dividing the world between what is masculine and what is
feminine. When you start to identify things that are living, you realize that there are
different legal obligations that you might have than if you just have language which
does not sort out the world in that way.
To get to your main point, you are seeing some of the advantages of using Cree
law and process to solve your problems. There are, though, potential disadvantages
that could follow and you must take care. One of the things that could be tried I
learned in Saskatchewan this morning. There is a beautiful new university in Regina
called the First Nations University of Canadait is a Douglas Cardinal building and
an inspiration to see. The University is set up under an FSIN (Federation of
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176
Saskatchewan Indian Nations) statute. In their legislative assembly, they pass laws
every term; the authority to carry on the work of the various entities (such as the First
Nations University) is delegated through First Nations statute. It may be that you have
a similar structure in James Bay, or could think about having a structure where chiefs
draft up a statute and create decision-making criteria that incorporates Cree law and
the Canada Business Corporations Act. As secretary, you would then have the
responsibility of effectively integrating the two in daily decision making.
[Vol. 50
Question 4:
Audience Member:
Thank you. Well first, this is a bit of a joke, but when I was in
high school we had this theory that the people who always talk
about sex and see sex everywhere are those who were not having
any. Sometimes I have this feeling in law school and in my contact
with bureaucracies that they see law everywhere, or at least
potential places for law. I would be interested to hear what you
would have to say about how Aboriginal legal traditions can
actually teach us given their special groundedness in local
communities histories and lived experience about the actual limits
to law and places where it is inappropriate to legalize. We still have
this tendency, even maybe in the Ministry of Justice, to rush into
legalizing when they see a problem, when maybe they do not look
for other types of consensus or dialogue.
John Borrows:
It certainly is the case that my view of the law is not legal positivistic, but that law
and society are intermingled; in traditions, there are many rules and standards that
affect peoples behaviours, and there are consequences for not following those rules.
My view of law is broad in that way. In terms of what we could learn from indigenous
peoples in taking these concepts forward, I was trying to suggest ways our nation could
be built on consent, and not on force or discovery or conquest or some other principle.
Would that not be an amazing lesson for the world? These are aspirations embedded in
the treaties, and so many countries would love to have a similar starting point. We do
not have to make it upit is there in our countrys fabric.
There are also many things you could consider in order to better understand
language. You study indigenous words and you get a world view focused on
relationships people should have with one another in terms of their obligations and
responsibilities. This is the case with environmental law; there are things that people
are trying in the criminal justice context. In fact, as Morris Rosenberg mentioned, the
idea of sentencing circles has some of its roots in indigenous legal traditions, in
gathering together and trying to come to a resolution in that format.
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J. BORROWS CREATING AN INDIGENOUS LEGAL COMMUNITY
177
Are there limits? I think there are limits. The professionalization of the decision
making through lawyers takes law out of the hands of people, like I was describing in
that Windigo story. Why should you need to hire somebody at $100 an hour when
through kin, through story, through ceremony, through speaking with elders, you can
deal with challenges on other bases? I think that speaks to the limits of formal law. And
of course, Aboriginal peoples experiencesof being overridden by laws that did not
recognize their rights, and acted as tools of destruction, not just tools of orderthese
are lessons which should be kept in mind. Thank you.
Question 5:
Audience Member:
I am a practitioner
in Aboriginal, Environmental, and
Constitutional Law here in Montreal. I would have a longer
question beginning with Maitland and the history of the common
law but I will spare you those learned references. Your talk is very
helpful. A lot of what you had to say left me with some of the same
frustration I felt in studying the jurisprudence. The examples always
go back to private law and criminal law
John Borrows:
Except for the treaties, right?
Audience Member:
Yes, except for the treaties. But I am interested in seeing what
you have to say about how this project is going to play out when it
starts to threaten the real economic interests in terms of dividing up
the resources of the nation? It seems to me, for example, there has
been somebait and switch is not the right termbut there has
been a kind of a reduction of what is going to be delivered under
Delgamuukw. We have gone from accommodation in R. v.
Gladstone45that had to have a process and a substantive aspect
and a real economic aspect which is, for example, in the separate
reasons of LaForest in Delgamuukwto what governments are
now offering which is you can be part of a multi-stakeholder
process. Or, we have consultations called environmental
assessments but it does not actually allow you to be part of the
decision, only for you to have your say. That is one thing on which I
would be interested to hear what you have to say.
45 R. v. Gladstone, [1996] 2 S.C.R. 723, 137 D.L.R. (4th) 648.
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[Vol. 50
The other thing is the lack of progress on the poverty of sources.
It seems to me that there are limits to going up the historic chain.
James Bay and the Northern Quebec Region, which was just
mentioned, is a real watershed effort but I am not sure how much
progress we have made since then. When I look at the Nunavut
agreementand you have a lot of, perhaps, experience on the
ground with it, I would be interested to hear what you have to say
but when I look at that agreement it seems to me that in a place
where you could have had new arrangements and direct democracy
(it is a small population), you instead have thrust on these poor
people an incredible growth of administrative tribunals, boards, and
mechanisms which are ill-adapted and unnecessarily heavy. If you
could just comment on the lack of progress and poverty of sources
on the one hand, and also this question of when the economic
crunch really comes.
John Borrows:
I can sense your frustration and share it in some respects. The justification of
infringement test seems weighted against indigenous rights. The way treaties are
sometimes implemented does not allow, it seems, for more community-based
processes. And so, let us acknowledge those problems. The question is: what do we
do about them? I think we try to make arguments that are persuasive as to how to
push forward. Part of what I am trying to say could be applied to the issues of
infringement and justification. There could be access to First Nations views around
consultation, consent, compensation, and accommodation. Indigenous legal traditions
could be used for the implementation of the land claims agreements.
Stephen Scott:
Thank you. You will have a chance to ask further questions when you meet with
Professor Borrows in the reception that follows. I would simply wish to address a
word of thanks.
Few tasks, I think we can agree, present greater challenge to the Canadian
polity than achieving a balance that is satisfactory to the Aboriginal peoples
between the preservation of traditional ways of life and the achievement of material
standards of living comparable to those of Canadian society at large. Added to this
are the complications, first, of redressing historic grievances arising from the
spoliation of Aboriginal peoplesI do not think that term is too strongand,
second, of achieving optimal forms of autonomous Aboriginal government. These
forms, I would argue, should be so designed that they neither aggravate the
centrifugal forces which, at the best of times, threaten to tear the Canadian
federation asunder, nor render our structures of government so complex and costly
as to impede our efforts at achieving a national economic performance which,
alone, can give us the means to discharge our tasks. Not least of these tasks is
J. BORROWS CREATING AN INDIGENOUS LEGAL COMMUNITY
2005]
provision to our Aboriginal peoples, by themselves wherever practicable, of clean
water, first-rate health, educational, and other services, and an environment as little
degraded as possible.
179
All these things must be accomplished within the frameworkand, indeed,
through the machineryof a Canadian legal system whose strengths you, Professor
Borrows, would seek to enhance, and whose weaknesses you would redress, by
giving it a more truly indigenous character in many senses of the term indigenous.
We are grateful to you, Professor Borrows, as a leading thinker and writer on
Aboriginal issues in Canada, for your address this evening and for your many other
contributions to the national debate. We wish you well in all your endeavours.
