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                       John Borrows’s Outdoor Legal Education

                                   On Indigenous Law



By Randall White

Late this past September Prime Minister Justin Trudeau was stressing yet again his government’s determination “to correct past injustices and bring about a better quality of life for Indigenous Peoples in Canada.”

He went on: “Though this path is uncharted, I am confident that we will reach a place of reconciliation” with Canada’s First Nations.

In the middle of October helping identify a few stretches of the still uncharted path was the implicit ambition of three public lectures at the University of Toronto by John Borrows, the University of Victoria’s Canada Research Chair in Indigenous Law.   

Mr. Borrows is Anishinabe/Ojibway and a member of the Chippewa of the Nawash First Nation in Ontario, at Cape Croker on the Bruce Peninsula. He is also the author of two path-breaking books of 2010 — Canada's Indigenous Constitution and Drawing Out Law: A Spirit's Guide.

More recently he was named the 2017 Killam Prize winner in Social Sciences by the Canada Council.  And this year he is as well the Distinguished Tomlinson Visiting Professor at McGill Law School in Montreal. 

An Anishinaabe Law Class: Outdoor Legal Education Experience that Professor Borrows gave for McGill law students late this past summer illustrates his modus operandi.

The official course description notes “Students will hear and work with sources of Anishinabe Law found in traditional stories, the environment, treaties, declarations, customs, etc.” 

The description continues: “The camp is outdoors, on land and water, and in First Nation community buildings and territory, at the Chippewas of the Nawash First Nation on Georgian Bay in Ontario.”

From such activities—along with his more conventional legal training at the University of Toronto Law School—John Borrows has delved into the broader indigenous policy that concerns Prime Minister Trudeau. 

And agree or disagree with some or all of his ultimate conclusions, there can be no doubt he has interesting things to say about the uncharted path to reconciliation between indigenous and non-indigenous Canadians. 

A questioner at the lectures also complained that John Borrows’s strategy is “the opposite of anger.” Whatever else, this makes it easier for non-indigenous people to hear him. 

Some of what he has to say similarly has reassuring (if unacknowledged) parallels with traditional non-indigenous Canadian public policy wisdom. 

In other parts of his argument Professor Borrows sounds strangely like the man who is still Canada’s longest-serving prime minister, William Lyon Mackenzie King (1921–1926, 1926–1930, 1935–1948). 

When Borrows says “beware of the single answer,” it seems not all that different from Mackenzie King’s “conscription if necessary, but not necessarily conscription.” There are similar parallels in the urging that Canada’s unique problems are never solved overnight. 

Professor Borrows’ arguments about the law that flows from the needs of the land and its survival as the human home have obvious connections as well with contemporary non-indigenous environmental gospels. 

(Though in this case the authority is not modern science, but the deep indigenous past.)

Inevitably, some will argue that certain troubles haunting the Trudeau government’s uncharted path to reconciliation with Canada’s First Nations generally still haunt Professor Borrows’s innovative “outdoor education” strategy.

Like so much related discussion, Professor Borrows’ stretches of the uncharted path to reconciliation still seem largely preoccupied with the on-reserve First Nations population. Yet by the 2011 census the First Nations majority in Canada was living off the traditional reserves mandated by the Indian Act.

(This trend is especially prominent in Ontario, where only 37% of “First Nations people with registered Indian status” lived on reserves in 2011.)

Similarly, the conclusion to Harold Innis’s 1930 classic The Fur Trade in Canada: An Introduction to Canadian Economic History presciently declared: “We have not yet realized that the Indian and his culture were fundamental to the growth of Canadian institutions.”

The Canadian mainstream has arguably still not quite come to this realization in 2017. And it doesn’t figure explicitly in John Borrows’s outdoor education strategy either. 

The ultimate upbeat good news from Professor Borrows’s lectures in Toronto this fall is nonetheless that resources for meeting Canada’s 21st century indigenous and possibly other policy challenges are now under cultivation, on the land that has its own laws. 

At some point the uncharted path probably will reach a place of reconciliation, remembering that these things take time, and there is never just one single answer. (And such indigenous legal principles as “love,” “truth,” and “respect” should at least be helping guide “the growth of Canadian institutions” that lies ahead.)


About Randall White

Randall White is a former senior policy advisor with the Ontario Ministry of Finance, and a former economist with the Ontario Ministry of Municipal Affairs and Housing. He is the author of Ontario 1610-1985: A Political and Economic History and Ontario Since 1985. He writes frequently about Ontario politics.
Posted date : November 12, 2017

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