Chantal Veinotte: Reflection on Indigenous Law as Practice (LAWS 2289)

It was a Sunday night in early February. I was sitting in a familiar space, in a circle debriefing my second Blanket Exercise with my colleagues at the yoga studio where I teach. For many of them, this was their first real exposure to any form of Indigenous knowledge. Of course, many of them had read about Indigenous people in history books, but this was an Indigenous account of the school history books. There is something powerful about the Blanket Exercise. It provides participants with an ever so slight yet powerful glimpse into what Indigenous communities have gone through over the years. Essentially, it has the ability to transform you from an ‘outsider’ to an ‘insider’ for a moment, even if the immersion is shallow and finite in time.

The insider-outsider view is a major re-occurring theme in Indigenous law. It speaks to the concept of being able to perceive Indigenous law from an Indigenous perspective.[1] Indigenous Law as Practice has certainly broadened my insider view. It facilitates this type of learning through its hands-on approach. We learned through stories, through accounts, through the language, and by deliberating with one another. Gaining insider view requires an openness to learn and an element of humility and vulnerability. It also requires deep and thoughtful discussion so as to generate real deliberated understanding.

The fear with regards to insider view is based in whether we can ever really accomplish it. Can the legal community every truly obtain insider view when we were not raised in Indigenous legal traditions or worldviews? There is a real fear that we may get it all wrong with regards to Indigenous law because we do not and cannot fully understand it. To this I say, the fear of what will happen if we choose not to engage is far more horrific. We cannot use our lack of experience and expertise as a reason to disengage. We must be vigilant in our quest to support our Indigenous communities as we walk forward towards reconciliation. We must be humble and cognisant of our own limitation and gaps in knowledge, but we should not let our lack of understanding and experience become an excuse to disengage. This is exciting work! We may never fully obtain insider knowledge, but we can understand enough to be allies. We can care enough to be invested. We must do our part to help support Indigenous communities. Resting our hats on our own shortcomings is not an option. We have already done that.

My perception is that there is this underlying fear of getting it wrong. In reality, engaging in the revival of a law is daunting and the legal profession will make mistakes. However, there are tangible ways that we can mitigate that risk. One way is to engage directly with community with regards to utilizing the deliberative method.[2] We have witnessed an excellent use of this in the stories method. Here we saw Hadley and Napoleon take the findings of their stories back to the community so that their findings could be deliberated.[3] This brings a form of legitimacy to findings in that it has been assessed and validated by those who have insider view with regards to that specific story and its teachings.[4] As academics or lawyers, we can begin to work through different stories, decipher legal principals, and bring them to Indigenous communities for validation and deliberation.

The stories method also mitigates against the fear of “getting it wrong” by utilizing a plethora of different stories from a particular Indigenous group to try and decipher more generalized legal principles.[5] The risk in studying just one story is that we misinterpret legal principles as being broader in scope then they are. For example, a story may refer to a specific way in which they restore relationships amongst family members, however there could be a contextual factor that renders that to be the case. This is well illustrated by the story The Invisible Boy. In that story, two abusive sisters are turned into a mosquito and a black fly in order to diminish their ability to harm.[6] Upon reading the story, I remember feeling astonished that the story decided to manage the harm through mitigation and that there was no attempt to rehabilitate the sisters. Once I read the Mi’kmaq Essentials documents I realized that rehabilitation is in fact a principle of Mi’kmaq law.[7] It is likely, although unsaid, that in The Invisible Boy, rehabilitation was either viewed as ineffective or inappropriate and therefore was not directly mentioned in the story. Augmenting our sample size is a practice we regularly engage in when we perform statistics. We know the bigger our sample size is, the more likely that our statistical analysis will be accurate and further representative.[8] The same concept applies to Indigenous legal principles. The more extended our reach becomes with regards to stories, the more likely we are to get an accurate understanding of the specific legal concepts being studied in relation to Indigenous law.

I think one of the biggest hurdles to overcome in Indigenous law is its perceived legitimacy within the current established legal profession. We often reflect upon how Canada is already a legally bijuridical country, presently employing both common law and civil law.[9] It is therefore not incomprehensible that other legal systems can exist and be equally valued in the Canadian legal landscape. Furthermore, there is fear that those well-established lawyers will be particularly resistant to accepting Indigenous law. We have been called to action through the Truth and Reconciliation Commission.[10] If anything, those who resist inspire me to arm myself with reason, logic, and sound arguments to help advocate for the revival of Indigenous laws across Canada.

My colleagues were flabbergasted and defeated, a feeling I remembered all too well at the end of my first blanket exercise during my first week of law school. As the talking stick came my way, I realized that something in me had changed. I realized I had been given tools to help us navigate these unchartered waters. I grasped the stick and spoke about hope, about hard work, about overcoming obstacles. There are many of us who care. There are many of us who want to get out there and actively engage in reconciliation. Most importantly, we want our voices to empower other voices.  I feel incredibly privileged to be engaging with these issues firsthand. I am fortunate to know what I know and to also understand that there is always more to learn.

The challenges are many. So many of them that I wished to talk about but simply do not have the space. There are accessibility, trauma-based, and deep-seated historical challenges to try and overcome. There are stereotypes and shallow idealistic notions of Indigenous law. There are intelligibility issues, relevance issues, and competing interpretations of legal principles. There are challenges. The work is hard, however, it is all the more reason to tune in and engage. This class has left me inspired, empowered, and thirsty to learn. What a way to enter the profession.

Sources:

[1] Basil H Johnston, “Is That All There Is?: Tribal Literature” (1991) 128 Can Literature at 55-56. 

[2] Leroy Little Bear, “Dispute Settlement among the Naidanac” in Richard F Devlin, ed, Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery, 1991). *Although not explicitly stated, Little Bear’s piece shows the reader how an outsider’s perspective can inadequately portray culture. This rendition of the Canadian judicial system makes the reader question whether an insider view is even possible. 

[3] Val Napoleon and Hadley Friedland, “An Inside Job: Engaging With Indigenous Legal Traditions Through Stories” (2016) 61 McGill Law Journal 734.

[4] Hadley Friedland and Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions.” (2015) 1(1) Lakehead Law Journal 30.

[5] Ibid.

[6] Alden Nowlan, Nine Micmac Legends, in story titled “The Invisible Boy”, (Hantsport NS: Lancelot Press 1983) at 32.

[7] Accessing Justice and Reconciliation – Mi’kmaq Legal Traditions Report (2012), Legal Principle 2(b).

[8]Sarah Littler, “The Importance and Effect of Sample Size”, Select Statistical Services, online: <https://select-statistics.co.uk/blog/importance-effect-sample-size/>.

[9] John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010), Chap. 4, “Learning from Bijuridicalism,” 107.

[10] TRC Calls to Action, no 27, 28, 42, 45 and 50.