John Borrows - Canadas Indigenous Constitution

CANADAS INDIGENOUS CONSTITUTION

Canadas Indigenous Constitution reflects on the nature and sources of law in Canada, beginning with the conviction that the Canadian legal system has helped to engender the high level of wealth and security enjoyed by people across the country. However, long-standing disputes about the origins, legitimacy, and applicability of certain aspects of the legal system have led John Borrows to argue that Canadas constitution is incomplete without a broader acceptance of Indigenous legal traditions.

With characteristic richness and eloquence, Borrows explores legal traditions, the role of governments and courts, and the prospect of a multi-juridical legal culture, all with a view to understanding and improving legal processes in Canada. He discusses the place of individuals, families, and communities in recovering and extending the role of Indigenous law within both Indigenous communities and Canadian society more broadly.

This is a major work by one of Canadas leading legal scholars.

JOHN BORROWS is a professor and Law Foundation Chair in Aboriginal Justice in the Faculty of Law at the University of Victoria and Robina Professor in Law and Public Policy at the University of Minnesota Law School.

JOHN BORROWS

University of Toronto Press Incorporated 2010

Toronto Buffalo London
www.utppublishing.com
Printed in Canada

ISBN 978-1-4426-4103-7 (cloth)
ISBN 978-1-4426-1038-5 (paper)

Printed on acid-free, 100% post-consumer recycled paper with vegetable-based inks.

Library and Archives Canada Cataloguing in Publication

Borrows, John, 1963
Canadas indigenous constitution / John Borrows.

Includes bibliographical references and index.
ISBN 978-1-4426-4103-7. ISBN 978-1-4426-1038-5

1. Native peoples Legal status, laws, etc. Canada. 2. Customary law
Canada. 3. Native peoples Canada Government relations. I. Title.

KE7709.B673 2010 342.710872 C2009-906295-X
KF8204.5.B673 2010

This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada.

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council.

University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Law is a very social activity, though writing about it can be a solitary endeavour. I had both experiences composing this book. I was inspired by the ideas and work of numerous Elders, law professors, lawyers, law students, and friends. I enjoyed their companionship, gentle criticism, and strong encouragement as we discussed matters that lie at the heart of this work. At the same time I also spent long hours by myself researching and writing about what I was learning. I was able to take the time to engage in both of these activities as a result of support from several sources. I want to acknowledge the many people and organizations that made it possible for me to have these varied experiences. In particular, the former Law Commission of Canada and the Social Sciences and Humanities Research Council made my initial work possible by funding me as a Virtual Scholar in Residence. This led to the production of a Report for the Commission entitled Justice Within: Indigenous Legal Traditions, released the week the Commission closed. Since the Commission could not do much to distribute the work in the circumstances, I re-acquired the publication rights and spent the next two years substantially adding to what I had written. I want to thank the Trudeau Foundation for their financial support during this period. As a Fellow of the Foundation I received resources that made it possible for me to travel to Utah and Minnesota for the final push to get these ideas in greater circulation. I also received tremendous support from my home faculty at the Law School of the University of Victoria. They gave me the time and the flexibility to write and visit many people whose perspectives greatly shaped this work. Dean Andrew Petter was particularly helpful in this respect. I also spent teaching semesters at J. Rueben Clark Law School of Brigham Young University and the University of Minnesota Law School while creating this book. I greatly benefited from the strong intellectual environments in both settings.

As my writing neared completion, the Social Sciences and Humanities Research Council once again assisted by providing aid to the University of Toronto Press for the publication of this work. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. I would also like to acknowledge that portions of was previously published as Living Law on a Living Earth: Aboriginal Religion, Law and the Constitution in Law and Religious Pluralism in Canada (Vancouver: UBC Press, 2008). I gratefully acknowledge UBC Press for their permission to reproduce this work.

I also want to acknowledge individuals from organizations who provided valuable insights in commenting on earlier drafts of this work. I met with members of the Indigenous Bar Association who were incredibly generous with their time. I also taught intensive courses at the University of Toronto Law School and the University of Victoria Law School based on the final draft of this book and want to thank the students in those classes for their help. The students at my alma mater never fail to impress me with their brilliance, and the class I taught was no exception. I also had many colleagues read early drafts of this book. In particular, I want to thank the following individuals for their influence on and comments about the ideas contained herein: Ben Berger, Bruno Bonneville, Frank Calder, Paul Chartrand, Gordon Christie, Dianne Corbiere, Lorena Fontaine, Sakej Henderson, Jeff Hewitt, Basil Johnston, Darlene Johnston, Dawnis Kennedy, Kelly LaRocca, Johnny Mack, June McCue, Richard Moon, Val Napoleon, David Nahwagahboh, Mark Stevenson, Lucien Ukaliannuk, and Wendy Whitecloud. I also gratefully acknowledge the helpful comments of anonymous reviewers for this manuscript who were contacted by the University of Toronto Press. Special thanks go to Kerry Sloan and Josef Rosenthal for their excellent work as research assistants in the final stages of this manuscripts preparation.

Most of all I would like to thank my wife Kim, who travelled with me across North America and into New Zealand and Australia as this work unfolded. I recognize it is not easy living with someone who doesnt live in any one place for very long. Her love and support underlies everything written in the pages that follow.

CANADAS INDIGENOUS CONSTITUTION

Three otters and an eagle. They are all fishing. They hug the kelp-strewn shoreline, searching for their next meal. The tide is out, revealing the lands generous gifts, and opening new possibilities for life. Salt winds cleanse the air. The sun is warm, and stray clouds smudge the brilliant blue sky