justice canada

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John C. Tait Memorial Lecture

MONTRÉAL—Prof. John Borrows, of the University of Victoria Law School, delivered the Fifth John C. Tait Memorial Lecture at McGill University in October. The lecture series is named after the former deputy minister of justice who died in 1999.

The full text of Prof. Borrows’ remarks, “Creating An Indigenous Legal Community,” will be published in an upcoming issue of the McGill Law Journal. Here are excerpts:

It has been said that Canada is a bijuridical country. Bijuridical means “a state of facts: the coexistence of two contemporaneous legal systems.” 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, can also be 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 weight of our legal inheritance as Canadians.

Bijuridicalism is an incomplete model of dialogue, linguistically, politically and culturally. 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 people. Canada would better be described, as Nicholas Kasirer said, as multi-juridical or legally pluralistic. The continued existence of Indigenous law requires a pluralistic approach to understanding the relationships between Canada’s many legal traditions. This reminder should carry us beyond bijuridicalism to search for more accurate and inclusive ways of describing the state of Canada’s legal inheritance.

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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 something that just continues to apply within Aboriginal communities. It is more than just private or Aboriginal community law. Indigenous law is also a part of Canada’s constitutional structure. Indigenous legal traditions shape and are embedded in our national legal structure.

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So I hope I have now made my first point which is 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. I’m using “Indigenous” in two ways as I make this point. I believe that Aboriginal peoples as the first peoples, their legal community should be strengthened. But I also believe that Canada can become more fully indigenous, more fully rooted in this place, less rooted in its colonial 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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We have a real crisis in the rule of law in Aboriginal communities. And it is not a crisis because Aboriginal peoples don’t have the rule of law, it is a crisis of legitimacy about the rule of law and 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 the problems that we have. It is not the whole solution, but it is a part of the solution. As the Supreme Court said in the Manitoba Language Reference, the rule of law is a normative order which sustains legality and legitimacy and prevents anarchy and chaos and disarray. Many of our communities are in a place of disarray because those values are not grafted on to how people are living their lives fully enough.

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What a vibrant country we live in, to be able to have access to different legal standards under the civil law and under the common law. Although they are sometimes similar, sometimes they throw up different answers. To be able to then go to another tradition and realize that there is further guidance and wisdom that we can learn on something is, I think, an incredible imagination-opening idea that exists there on the ground, that could help to create a legal community.

There are things that law schools could be doing to more profoundly affect our notion of our legal inheritance.

I really admire what is happening here, at this university, in trying to integrate common law and civil law through everything that happens here, through a legal education experience. I look forward to the day when there is a law school that also does that with Aboriginal legal traditions.

Indigenous legal traditions shape and are
embeddedin our national legal structure.

When I teach my class on Indigenous lands rights and governance, I teach Anishinabek law each and every single class. I would look forward to the day to be able to have an Anishinabek law be front and center in that.

The University of Victoria has Akitsiraq Law School in Nunavut with some excellent students. I was able to spend four months there in January of 2003. I would teach contract law and I would try to supplement it with indigenous Inuit legal materials and try to supplement it with land claims, framework legislation and agreement, but I could only do so much. Then the students would take what I taught them and they would speak amongst themselves in Inuktitut and keep me filled in as to where they were going, with what they were trying to learn, and then throw it back at me. Through that iterative process, we would come up with what I was hoping the legal concept was under contract law. But then I would leave and for an hour and a half, they would then have Lucienne come in, an Inuit elder, who would teach them the law of obligations from an Inuit perspective.

These students when they graduate will have an opportunity to try to make this a reality in the territory of Nunavut. It shouldn’t just be the far north. It should permeate throughout our communities. There are things that we can do in legal education to help create an Indigenous legal community.

There has been a lot that has been done through harmonization through the past two years. There is the Federal Law – Civil Law Harmonization Act, No. 1 that came into effect on June 1st, 2001. According to Section 8.1:

Both the common law and the civil law are equally authoritative and recognize sources of the law of property and civil rights in Canada and unless otherwise provided by law, if in interpreting enactment it is necessary to refer to a province’s rules, principles or concepts forming a 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 was applied.

I’m imagining in my mind creating an Indigenous legal community with some kind of Harmonization Act that has an associate or an assistant deputy minister attached to it, that is able to have the resources to work out how these things can be compatible and not tear apart our fabric, 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. I met Aboriginal employees and non-Aboriginal employees and managers in Montreal and Toronto, and in Iqaluit and in Winnipeg, and Saskatchewan, Edmonton and Vancouver, and spoke to people in Whitehorse and Yellowknife and Halifax. I get this sense of a very deep and rich and educated group of people that have a profound interest in Aboriginal legal issues, both Aboriginal and non-Aboriginal people. It was a great blessing and privilege to be able to meet these people, to see the good work that was being done as they were going from place to place.

There are also things we could do with the judiciary. There are things that we could do with law societies.

The Ojibwe have a law about how we learn and the word for look is “Nuh.” If you were walking through the forest and someone said “Nuh,” you were to look, not just by visually focusing your eyes on what is around you, but literally trying to see and feel out of all parts of your body, to take in, to look with all your being to discover what is there.

I think as we approach the creation of an Indigenous legal community, it is important that “Nuh,” that we look and that we engage, not just what visually we see before us with our eyes, but with the vast reservoir of feeling and emotion that is attached to how people want to live in their communities, by their values, through their laws and work with one another through peace and friendship and respect.

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