John Borrows, Recovering Canada: The Resurgence of Indigenous Law. Toronto:
University of Toronto Press, 2002. Pp. xii, 312.
Neesh-wa-swiish-ko-day-kawn arose and said:
in the time of the Seventh Fire an Osh-ki-bi-ma-
di-zeeg (New People) will emerge. They will
retrace their steps to find what was left by the
trail.
The task of the new people will not be easy. If
the new people remain strong in their quest, the
Waterdrum of the Midewiwin Lodge will again
sound its voice. There will be a … rekindling of
old flames. The Sacred Fire will again be lit.
It is at this time that the Light-skinned Race will
be given a choice between two roads. If they
choose the right road, then the Seventh Fire will
light the Eighth and Final Firean eternal Fire
of peace If the Light-skinned Race makes the
wrong choice of roads, then the destruction they
brought with them in coming to this country
will come back to them and cause much
suffering …
We might be able to deliver our society from
the road to destruction. Could we make the two
roads that today represent two clashing world
views come together to form [a] mighty nation?
Are we the New People of the Seventh Fire?
E. Benton-Banai1
John Borrows2 writes about Aboriginal legal issues and perspectives at a dynamic
and, he suggests, critical time in the history of relations between Indigenous and non-
1 The Mishomis Book: The Voice of the Ojibway (Hayward, Wis.: Indian Country Communications,
1988) at 93, cited in Recovering Canada.
2 Professor and Law Foundation Chair in Aboriginal Justice at the University of Victoria. Professor
Borrows is a member of the Anishinabe (Anishinabek) First Nation. The Anishinabe are also called
Ojibway or Chippewa. The Anishinabe Nation is geographically situated in central North America,
around the Great Lakes. The band to which Professor Borrows belongs is the Chippewas of the
Nawash, which has as its heart (according to Borrows) the Cape Croker Indian Reservation, located
on Lake Hurons Georgian Bay in present-day southern Ontario.
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Indigenous people in Canada. Those relations have changed markedly in the past
thirty years or so. In that time, Aboriginal peoples have seen significant advances in
their legal, political, and economic powers. Yet, for Borrows, the changes have been
too slow and peripheral. Aboriginal peoples continue to be uncertain citizens within
their own country.3 What is urgently needed is a new socio-political contract between
the Aboriginal and non-Aboriginal segments of Canadian society. The Eighth Fire
must be lit and lit quickly. If it is, harmony and prosperity may be ours. If it is not,
dire consequences will certainly ensue.
Recovering Canada draws largely from articles and chapters published by
Borrows from 1996 to 2001. It is an attempt to introduce a theme and unity not
always present or apparent in earlier manifestations of [his] ideas (vii). Some of
Borrows nascent scholarly output, going back to 1992, is also referentially
incorporated in Recovering Canada. The book is therefore a sleek and nimble
distillation of a decades thought and writing on Aboriginal legal issues.
Recovering Canada, as the full title suggests, is about the resurgence of
Indigenous law in contemporary Canada. Borrows sees Indigenous law as having
ongoing and doubtlessly increasing relevance to Canadian society at large. Law, for
Borrows, is a means of igniting the Eighth Fire. He wants to help with the lighting.
Most of the book is dedicated to explaining and illustrating why he considers
Indigenous law to be relevant and valuable today.
The first two chapters of the book focus on the constructive use of Anishinabek
laws in dispute resolution (56). In chapter 1, With or Without You: First Nations
Law in Canada, Borrows discusses the legitimacy and flexibility of Aboriginal laws,
and explores how they might be received into Canadian law.4 According to Borrows,
First Nations legal traditions are strong and dynamic and can be interpreted flexibly
to deal with the real issues in contemporary Canadian law concerning Aboriginal
communities (27). Borrows argues that Canadian courts must do much more to apply
First Nations legal sources in resolving Aboriginal issues. His message is blunt:
Aboriginal systems of law will continue to operate with or without the reception of
their principles in Canadian courtrooms (27), but Canadian society as a whole will
be at a loss if such reception does not occur.
Borrows encouragement of the acceptance of Indigenous legal principles in
Canadian law continues in chapter 2, Living Between Water and Rocks: The
Environment, First Nations, and Democracy. In this chapter, Borrows goes to some
length to explain how the application of Indigenous legal principles relating to
environmental issues could benefit the manner in which non-Aboriginal society
3 The term uncertain citizens comes from Borrows article, Uncertain Citizens: Aboriginal
Peoples and The Supreme Court (2001) 80 Can. Bar Rev. 15, parts of which are included in
Recovering Canada.
4 Aboriginal law in the environmental arena is especially emphasized.
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D. MOODIE RECOVERING CANADA
471
grapples with its environmental dilemmas. As in chapter 1, examples of actual
Aboriginal law, contained in simple yet compelling stories, are included to facilitate
reception of that law. Borrows argues that the creation of a veritable Canadian
democracy requires the full legal and political participation of Aboriginal peoples.
Their systemic exclusion from the environmental regulatory process, having no set
mechanism by which to intervene at either the federal or provincial level, symbolizes
the central failing of Canadas existing constitutional and legal order. Canadas
Aboriginal peoples live at the margins (30), perennially forced to dwell on a narrow
ledge between the escarpment-like barriers and constraints of a racist and outdated
Indian Act … [and] the deep waters of provincial authority (30).5
The middle two chapters of Recovering Canada use [Anishinabek] traditions to
criticize the common laws application to Aboriginal peoples (56). Chapter 3,
Frozen Rights in Canada: Constitutional Interpretation and the Trickster,6 comments
on the Supreme Court of Canadas handling of Aboriginal rights claims and self-
government assertions in the mid-1990s. The fourth chapter, Nanabush Goes West:
Title, Treaties, and the Trickster in British Columbia, focuses on how the Supreme
Court has grappled with the idea of Aboriginal title, particularly in the context of
Delgamuukw v. British Columbia.7 In these chapters Borrows repeatedly invokes his
conception of Aboriginal sovereignty.8 Its counterpart, British Crown sovereignty, is
5 In addition, Borrows concept of democracy in the realm of human settlement design involves the
novel idea (at least from the non-Aboriginal perspective) that the environment itself should be a
participant. The application of Indigenous customary law might result in both the environment and
Indigenous people [evolving] from passive objects within democracy to active agents in the creation
of our settlements (54).
6 The Trickster is a vehicle of intellectual expression for Aboriginal peoples that Borrows
frequently uses in his writing. Borrows describes the Trickster, as follows:
The Elders teach [Anishinabek] laws through stories of a character known as
Nanabush, the Trickster. The Trickster offers insights through encounters that are
simultaneously altruistic and self-interested. … In his adventures, Nanabush roams from
place to place and fulfills his goals by using ostensibly contradictory behaviours such
as charm and cunning, honesty and deception, kindness and mean tricks. … Lessons are
learned as the Trickster engages in actions which in some particulars are representative
of the listeners behaviour while in others they are not (56).
7 [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193.
8 The concept of Aboriginal sovereignty, set up and historically substantiated by Borrows in his
early work, serves as a platform for much of his later writing, including significant portions of
Recovering Canada. Aboriginal sovereignty is anchored in the notion that, prior to European contact,
Aboriginal peoples of North America comprised several nations. They were culturally,
geographically, and often linguistically distinct. Each had its own legal systemostensibly responsive
and effective. Aboriginal peoples were inextricably connected to the physical environments of their
specific territories. And, intimately linked to their territoriality, these original North American nations
were self-governing. They did not derive power and authority from any external source; their power
and authority were self-sourced. They were sovereign nations within their respective territories.
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labelled as no more than a legal fiction concocted to facilitate the political subjugation
and much of the physical dispossession of Aboriginal peoples. Exhibiting consistency
with his earlier writings, Borrows berates the Supreme Court for its unreflective
acceptance of the Crowns assertion of sovereignty (82).9
Borrows reasoning with respect to Aboriginal sovereignty is convincing. At the
very least, it compels one to pause and reflect on his ultimate assertion that Crown
sovereignty dwells largely in the realm of the political, not the legal. It is what the
author does exceedingly well: he exposes his readers to new ideas and values from an
Aboriginal perspective.
Chapter 5, Questioning Canadas Title to Land: The Rule of Law, Aboriginal
Peoples, and Colonialism, continues the assault on the Supreme Courts treatment of
Aboriginal assertions of self-determination and land entitlement. Borrows is relentless
in this chapter, arguing that application by a truly independent judiciary of the
principles of federalism, democracy, constitutionalism, and the rule of law, and
exercising its legitimate range in reviewing sovereignty issues, mandates the
recognition of Aboriginal sovereignty. With Aboriginal sovereignty comes, by
definition, greatly expanded Aboriginal interests in land (far beyond those
encapsulated in the Delgamuukw version of Aboriginal title).
In the final chapter, Landed Citizenship: An Indigenous Declaration of
Interdependence, Borrows seems to take a step back, draw a deep breath, and
commit to a modification of tactics. His reformulated approach has a political feel to
it, but not in the cutting and direct way exhibited in chapter 5. Buzzwords such as
citizenship and democracy begin to pop up with more frequency. At one point,
Borrows states: To preserve and extend our participation with the land, and our
association with those who now live on it, it is time to talk of Aboriginal control of
Canadian affairs (140).10 He declares that [v]arious sites of power in Canada must
be permeated with Aboriginal people, institutions, and ideologies (140). This is not a
coup hes proposing: it is the opening of a new front in the war against Aboriginal
discrimination and injustice. To focus only on Aboriginal control of Aboriginal
affairs, ignores issues of cohesion, unity, and peace (155). Borrows concludes that
a critical way for Aboriginal people to avoid assimilation in Canadian society is for
them to meld into it, at one level anyway, and attempt to redirect it.
My admiration for both the substance and style of John Borrows writing does not
eliminate all scope for critical commentary. For one thing, he occasionally dwells in
the abstract. The concept of Aboriginal sovereignty and all that flows from it, for
9 Borrows goes so far as to challenge the Supreme Court to develop a (persuasive) explanation for
how the assertion of Crown sovereignty crystallized Aboriginal title (98), and suggests that the
Courts failure to do so and to continue to shun Aboriginal sovereignty arguments is an unjust and
discriminatory doctrine [that] can no longer be accepted (101).
10 [emphasis added].
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instance, is convincingly constructed and argued. But Borrows apparent petition for
unquestioned acceptance of Aboriginal sovereignty is problematic. It is unrealistic to
expect non-Aboriginal Canada to buy into a broadly-framed concept that will shift
power and resources away from it. There is a fundamental dilemma here, of course,
because at the heart of Borrows writing is the notion that Aboriginal peoples neither
want nor need their collective sense of self (and their aspirations to build on that sense
of self) to be measured against or validated by traditional Canadian ideologies and
institutions. For Aboriginals to have to seek from non-Aboriginals detailed approval
of proposed relational changes is exactly the remnants of colonial mentality that
Borrows voraciously argues must be obliterated. The propriety of his arguments is, in
my estimation, difficult to refute. But getting from here to there will take a huge
leap of faith on the part of non-Aboriginal Canada, and I am not convinced that a just
trust us approach will ever be enough to cause that leap to occur. To better promote
his inclusive vision of Canada, it seems Borrows may have to move away from
abstraction and into specifics.
A further criticism of Borrows writing is its general detachment from economics.
It is, for example, fine to argue within an academic setting for Aboriginal sovereignty
to trump Crown sovereignty. But the political, and more importantly, the economic
ramifications of such a theory are enormous. At the end of the day, money matters: to
ignore this is to risk wasting ones time and energy with ideas that may never do more
than orbit the real world. In the final chapter of Recovering Canada, with its
newfound focus on asserting Aboriginal control of Canadian affairs, Borrows
makes what I think is an important connection to Canadian economic reality. His
encouragement of much greater Aboriginal participation in, and control of, economic
aspects of Canadian society marks a critical refinement of Borrows thinking. It is
smart strategy to urge Aboriginal peoples to become entrepreneurs and business
leaders within the mainstream. Economic empowerment of Aboriginal peoples can be
harnessed to expedite political and social change. That type of empowerment and
more traditional Aboriginal activism in the legal/political realms need not, as
Borrows rightly points out, be mutually exclusive.
A final criticism of Recovering Canada is, once again, as much a comment on the
subject area of Borrows studies as on the work itself. It is also something Borrows
starts to address, as with the other points I have raised, in the last chapter of the book.11
11 In this sense, it may be that my criticisms are somewhat unfounded. As explained at the beginning
of this review, Recovering Canada is essentially a collection of previously published pieces spanning
a period of several years. Borrows has done an admirable job of putting these together through a
combination of reorganization and fresh writing to connect the dots. The book is cohesive and
Borrows has been successful in his stated objective of introducing theme and unity (vii). Yet there is
no denying the evolutionary nature of Recovering Canada. As hard as Borrows has tried to close the
circle, some of his early ideas lack the sophistication of his later ones. This, of course, is natural. And
it is extremely interesting to see how the last chapter of Recovering Canada augments some of the
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Aboriginal society within Canada is extraordinarily complex. It encompasses many
individuals, groups, and communities with often divergent perspectives and
aspirations. Borrows sometimes assumes too much homogeneity and speaks of the
fictitious Aboriginal person (like the fictitious reasonable person in Anglo-
Canadian law) as if there actually is such a person. Because of the great diversity of
Canadian Aboriginal peoples it is necessary, if one wants to write about them at all, to
extrapolate and generalize to some degree. Professor Borrows is well positioned to
attempt this in a balanced and fair-minded way. He draws from his own experiences
and his encounters with other Aboriginal peoples in different corners of the country,
as well as from his research and studies. But any broad discussion of Aboriginal
issues in Canada carries with it the inherent danger of misrepresenting the real
viewpoints and positions of many Aboriginal individuals and groups.
While I have not presented all my thoughts on Recovering Canada, suffice it to
say that I highly recommend this book. Readers will take away a keener appreciation
of Indigenous ideas and points of view, and be convinced that a resurgence of
Indigenous law is indeed underway. Recovering Canada accomplishes the difficult
task of persuading the reader that genuine acceptance of Indigenous law can occupy a
vital role in helping Aboriginal and non-Aboriginal Canada reconcile past differences
and move forward in closer harmony.
Douglas Moodie
thinking and proposals of the preceding chapters. This is not to say that the early thinking and
proposals are wrong, rather they are foundational. Borrows, I am sure, would be the first to admit
that there is much to be said beyond Recovering Canada; his ideas will continue to develop and be
refined. All this should, therefore, be borne in mind in reading Recovering Canada. The nature of the
book and the way it concludes both nullify and highlight many potential criticisms.
