Review: Recovering Canada: The Resurgence Of Indigenous Law

Indigenous rights are one of the biggest issues in Canadian politics right now. From the news media to the blogosphere to the arts and culture scene, Indigenous writers, thinkers and artists are making themselves heard, particularly around constitutional and Treaty rights. A lot of non-Native Canadians are confused about what exactly what these rights are, and what these rights’ implications are for them. How would Indigenous rights, particularly those related to land and governance, mesh with Canada’s Constitution and politics?

Anishinaabe law professor John Borrows tries to answer these questions in his book Recovering Canada: The Resurgence Of Indigenous Law (University of Toronto Press, 2002). Professor Borrows has spent decades studying the history of Indigenous law in Canada, how it could be interpreted by Canadian courts, and the potential benefits that incorporating Indigenous law could bring to all of Canada. Recovering Canada is one of his full-length discussions on the subject. Recovering Canada is worth going back and reviewing, especially on the 20th anniversary of its publication, especially with Indigenous rights and restitution being such a major topic.

One of Borrows’ key points is that Indigenous laws and rights, which derive from Indigenous peoples’ occupying their homelands since time immemorial, can exist side-by-side with the legal system non-Native Canadians brought from Europe. He shows this by retelling traditional Indigenous stories in the style of modern legal commentary, illustrating how the stories themselves were a key source of law for the Native people that told them. The stories provide key reasoning for, and broad consensus around, their communities’ social mores and standards. They could be used to resolve social divisions and conflicts in a way similar to the English common law’s use of ‘precedent.’ The content of the stories can even grow and change with time, just like the common law.

Borrows even cites how some Canadian court cases have acknowledged Indigenous rights and laws, and how European colonists often participated in Native legal processes like Treaty-making. But there’s been a major conflict in Canadian legal history between court cases that recognized Indigenous rights and laws, and cases that claimed those rights and laws were irrelevant, displaced by European laws and institutions.

Borrows gives an extensive history of how Canadian courts have tried to limit and narrowly define Native rights as being tied to only the practices they had before European contact. The idea of long-standing Indigenous rights and legal systems was repeatedly mocked and insulted by non-Native judges. Borrows dedicates an entire chapter to how this was especially done in what’s now British Columbia, which is particularly notable today with the current disputes in the territory of the Wet’suwet’en and the Coastal Gas Link pipeline.

The courts’ standard for Native rights, and indeed what it means to be Indigenous, depend on a definition created by non-Natives and dependent on non-Native society’s goodwill. It depicts Indigenous cultures and societies as frozen in time, saying they couldn’t change the way non-Native ones do. It came at the same time that non-Native society tried to repress and assimilate Indigenous cultures with things like potlatch bans and the residential school system, claiming they were backwards savages who needed to be “civilized”. That in turn led directly to a lot of the problems Indigenous people face today.

Borrows notes that the legal basis for these actions, such as it was, existed in the ‘Doctrine of Discovery’ European church authorities issued to justify colonialism. Later court rulings either upheld this claim as a justification for denying Indigenous legal rights and systems, or confirmed that the rights and systems existed before European contact. That’s led to the confusing legal limbo we’re in today over just how and when Native rights and legal systems apply. As Borrows puts it, this limbo deprives Indigenous people of the “right to organize themselves according to their own traditions, customs and laws.” Indigenous rights and laws are assumed to be frozen in time, while non-Native law is constantly growing and changing. Borrows isn’t the first one to notice this-George Manuel noted the same thing in his 1974 book The Fourth World: An Indian Reality (Collier Macmillan Canada, 1974: 135, 205 and 215–219).

Borrows cites the Supreme Court’s own definition of the ‘rule of law’ to show the flaws in the claim that only non-Native governments have legal standing in Canada. Non-Native governments repressed Indigenous peoples’ cultures and land access (violating the rule of law’s precluding arbitrary state power) and their legal systems (violating the rule of law’s maintaining a positive legal order) by unilaterally trying to redefine Indigenous peoples’ legal status on the lands that form Canada. Indigenous people are also the only ones expected to justify their rights and claims to sovereignty.

There’s a potential solution, though, one that Borrows calls “Indigenous control of Canadian affairs.” Despite what it might sound like, this doesn’t mean depriving non-Native Canadians of any legal representation or rights. What Borrows actually means is that Indigenous legal systems should be restored and recognized as part of the Canadian framework. For Borrows, it’d go a very long way towards restoring the rule of law for all Canadians and ensuring Canada lives up to its rhetoric of being a free and just society.

Indigenous control of Canadian affairs would also entail Indigenous people participating in Canadian institutions as a whole, not just the political and judicial systems but also in business, the arts, and other elements of Canadian life. and imbuing them with Indigenous ideas and knowledge. This would benefit not just Native people , but everyone. Borrows cites the example of how Indigenous principles on land use and knowledge of local conditions could benefit the planning and design of communities. In some cases, this is already happening, as with using Indigenous land knowledge to keep forest fires from going out of control, the large number of Indigenous artworks in Canadian museums, the increasing presence of Indigenous businesspeople, etc.

Borrows also mentions the need for “Indigenous control of Indigenous affairs”, in other words the need for Indigenous nations to have their own distinct land bases and legal systems to make decisions about their own communities and people. They’d become part of Canadian federalism, participating in the governance of the country but also having their own responsibilities and internal debates the way provinces like Alberta and Ontario do. Borrows repeatedly shows that Native governance would constantly evolve the way its non-Native counterpart does.

Borrows cites the Gus Wen Tah, or Two Row Wampum Belt, as a symbol of how Indigenous people and non-Native Canadians could relate to each other. Some thinkers believe the Gus Wen Tah represents complete separation and non-interference between Indigenous nations and non-Native people. For Borrows it can represent interdependence and the benefits of different groups each contributing to the greater whole. While they each have their own space and internal things to deal with, they also have other spaces where they support each other. Non-Native Canadians have long had these kinds of spaces, both provincial ones for internal things and national ones as a shared space, but this has mostly been denied to Indigenous people. Acting on the Gus Wen Tah would ensure that these principles, which are already well-established in Canada, would be fully extended to Indigenous people.

Some non-Native critics say this would lead to ethnically-based citizenship, where people could be excluded from Indigenous societies for not being “Native” enough. Borrows responds to this by suggesting that Indigenous nations can and should establish ways that non-Native people could be recognized as citizens of their nations, which would matter for access to things like Treaty rights. They’d be based on things like the person’s willingness to accept certain responsibilities, particularly the responsibilities Indigenous nations already feel to the lands they live on.

Other critics wonder whether that type of Indigenous citizenship would undermine a common Canadian one. Borrows notes that there doesn’t need to be a zero-sum game where people have to choose between Indigenous and Canadian citizenships. If anything, Indigenous citizenship can strengthen the Canadian one. Some Native people have a hard time seeing themselves as Canadian, but recognizing their Indigenous nationhood could strengthen their bonds with non-Native Canadians. Borrows points out that the non-Native refusal to recognize Canadian citizenship is itself threatening Canadian unity. Citing legal principles like the rule of law and the right to self-determination, Borrows points out that Indigenous nations could declare themselves completely separate from Canada, a point mentioned by the late Sewepemc thinker Arthur Manuel.

As both Borrows and Manuel note, it doesn’t have to end that drastically. Recovering Canada and Manuel’s own book The Reconciliation Manifesto are both part of a very long historic pattern of many Indigenous people across Canada advocating for their rights to have their own distinct communities within Canada and share the land with the rest of us, going back a century and more.

The question is whether the rest of us would be willing to make the necessary changes to recognize Indigenous rights and restitution, and achieve true reconciliation. With Recovering Canada, John Borrows offers a well-thought out way we might be able to do so.

If people took a step back and took a good hard look - Canadian society is in decline. The past cons and now lib govts have 'eroded' Constitutional rights of the People. Nobody is seeing that but Indigenous peoples see all of it and where it's heading. Nobody will have rights that protect them. It's already started, i.e., corps have constitutional rights and protected (thank current pmjt), environmentalists, and FN protesters lost 'constitutional right for peaceful assembly to protest' (thanks to lib pmjt), and rise of incarceration rates of BIPOC (thanks to h-arpr govt). They have proven to seek nothing but 'self gain' via govt office. NDP at least are fighting for the people.