Michael Boyd: Reflection on Indigenous Law as Practice (LAWS 2289)

            In instituting a class on Indigenous law, Schulich has joined ranks with the few law schools in Canada that have taken this important step. It will be five years come December that the Truth and Reconciliation Commission Report was published with its distinct Calls to Action.[1] Since its publication, there has been a great recognition of the atrocities Canada committed through its residential schools and its use of law for racist and genocidal ends. There are, however, deeper commitments than merely recognizing the harm that was caused. Canada has the responsibility for its entire legal culture to recognize Indigenous legal practices and traditions.[2]  Not only is this now a legal duty domestically and internationally[3], this is also a deep moral obligation.

            The claim that Canada has extinguished Indigenous rights and laws is a misguided and colonial view that is legally unsupportable.[4] The British did not “conquer” these lands or ever “extinguish” the rights and traditions of Indigenous people.[5] Quite on the contrary, Indigenous rights and laws have never gone away. Instead, through the resilience of Indigenous groups, Indigenous laws have remained an important and ongoing practice.[6] This may have incredibly concerning impacts on Canada’s supposed authority over these lands and Indigenous Peoples, but continuing to function under colonial myths is simply inexcusable. This is why we have treaties: they are for the purpose of reconciliation and grounded in the need to develop a nation-to-nation relationship.

            Rather than being a “conquered” people who might seek to retake these lands through armed conflict, Indigenous Nations have continued to work towards recognition and reconciliation. [7] An essential demand throughout this process has been the reclamation and recognition of utilizing their own laws.[8] Thus, it is imperative that legal societies and law schools follow through with the Actions called for in working towards reconciliation.[9] Firstly, this requires academic honesty in legal courses about the colonial myths that have influenced our legal culture. Secondly, there is a need for deeper engagement with and understanding of what Indigenous law actually is.

            There are some who perceive Indigenous laws to be solely customary and communally designed. Instead, Indigenous laws are sourced in a variety of legal traditions such as sacred, deliberative, natural, positivistic, as well as customary law.[10] Indigenous Peoples give spiritual significance to their laws, including the treaties that were developed with Canadian and British governments.[11] They look to the natural world for demonstration of balance and inspiration in resolving conflicts.[12] There is not such a harsh and fictional differentiation between humanity and other species, but instead acknowledgement that we share what we have with other beings and future generations.[13] Further, the deliberative practices are similar to common law practices of legislative debate and stare decisis in their consideration of the very human impact of discussion on the development of laws.[14]

            It is through engaging with Indigenous cultures that one can begin to take a deeper, “insider” view of its laws. Interestingly, a phenomenon occurs in the reverse where one can begin to utilize this framework to expose the shortcomings of our own laws. Aside from the obligation to support Indigenous groups in reclaiming their own laws, we can also develop an important part of Canada’s multijuridicalism by bringing a critical and needed perspective to our common law legal issues. For example, in a legal culture reliant on precedent, we can admit that these are stories painted in a language for a select few to understand. We can gain much by reforming these legal stories into language that people actually use and that can be understood in a communal or familial way.[15] Further, in a system obsessed with adversarialism and the incentive to rebut guilt, there is much to be gained by learning from Mi’kmaq legal principles. Key legal concepts include taking responsibility, restitution instead of retribution, victim protection instead of exposure, and formal, communal forgiveness.[16] Rather than criminalizing poverty and addiction, Mi’kmaq law looks to address the underlying causes that leads one to crime and to holistically resolve them.[17] Further, the learning and implementation of Indigenous legal concepts demonstrates that they are not just utopian theories, but actual practical and productive legal approaches to resolve very serious issues. Thus, in continuing to develop Indigenous law, we not only have the opportunity to assist in the reconciliation and healing of Indigenous Peoples but can also help in the healing of all Canadians.

Sources:

[1] Truth and Reconciliation Commission of Canada: Calls to Action.

[2] Calls to Action 27, 28, 45(iv), 50, 57, 86, 92(iii).

[3] United Nations Declarations on the Rights of Indigenous Peoples Art. 27 and 34.

[4] See John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010 at 14. [“Indigenous Constitution”].  

[5] Ibid at 22.

[6] Ibid at 23. 

[7] Ibid at 20.

[8] See Royal Commission on Aboriginal Peoples at 2.3.3, Truth and Reconciliation Commission Call to Action #42, Reclaiming Power and Place: The Final Report of The National Inquiry Into Missing and Murdered Indigenous Women and Girls at 118.

[9] TRC Calls to Action 27, 28, 50.

[10] Indigenous Constitution supra note 4 at 24-58.

[11] Ibid at 26.

[12] Ibid at 33.

[13] James (Sakej) Youngblood Henderson, "First Nations Legal Inheritances in Canada: The Mi'kmaq Model" (1995) 23:1 Man LJ 1, paras 73.

[14] Ibid at 36.

[15] Val Napoleon and Hadley Friedland, “An Inside Job: Engaging With Indigenous Legal Traditions Through Stories” (2016) 61 McGill Law Journal 725, at 734.

[16] AJR Project – Mi’kmaq Legal Traditions Report Legal, Principles 2(a)(d). 

[17] Ibid Principle 2(b).