Upholding the Law of the land

When it comes to implementing the recommendations of the Truth and Reconciliation Commission, lawyers have unique responsibilities; Calls to Action 27, 28, 29 and 50 are particularly instructive. Today, my colleague Maxine Hayman Matilpi and I reflect on what this means for us as legally trained individuals, our public interest law organization and legal pluralism in Canada.

Trish Monture asserts in Thunder in My Soul: A Mohawk Woman Speaks:

Every oppression that has been foisted upon Aboriginal people in the history of Canada has been implemented through [colonial law] . . . This includes child welfare apprehension, residential schools, the outlawing of our sacred ceremonies, the prohibitions against both voting and hiring lawyers, the impact of the criminal justice system, and [the taking of land and resources] . . . Law is not the answer. [Law] is the problem.

When it comes to matters of law, legal training and the practice of law carry both privilege and responsibilities. The public looks to us for leadership and information; it counts on us to tell the truth and dispel lies. This is especially true when it comes to reconciliation.

The TRC Recommendations urge us to recognize that Indigenous law is law, to commit to the multi-juridical potential of Canada’s legal system, and to consider how to step into our responsibility to promote and work for deeper systemic change by advancing and implementing Indigenous law.

By “advancing Indigenous law” we don’t mean merely absorbing Indigenous legal orders into the common law. The current doctrine of Aboriginal and Treaty rights has evolved to recognize the existence of Indigenous legal orders, but this recognition, as Larry Chartrand notes, is common law dependent.

The common law may take notice of Gitskan legal principles regarding land use and management or take notice of Cree law regarding child adoption. However, it is the common law that will decide whether these Indigenous “customs” will have the force of law in Canada and to what extent. If they are recognized as having legal force, they do so by being absorbed as part of the body of Canadian common law. Absorbed Indigenous law is obviously not Indigenous peoples’ law, but English/Canadian common law.

This idea is a huge shift in legal thinking because it challenges uncritical understandings of Aboriginal law doctrine and asserts that the Eurocentric common law is not the only valid legal tradition in Canada.

Indigenizing the law means system-wide recognition of Indigenous legal orders, where these orders are seen as legitimate sources of law within a plural legal society and where this legitimacy is endorsed by Canadian society and governing bodies. Accepting that Canada is a multi-juridical state and going beyond the goal of absorbing Indigenous law into the common law means Indigenous legal orders stand on their own independent authority, equal in status to common and civil law.

Indigenizing the law changes the paternalistic and hierarchical relationship because it means colonial powers no longer have the exclusive right to define and decide the issues. The doctrine of reception doesn’t incorporate Indigenous knowledge and as a result Indigenous legal systems are erased. In his book, Canada’s Indigenous Constitution, Professor John Borrows argues that, in the result we’ve ended up with

…an incorrect and impoverished view of the law . . . a structure built on an unstable base (at 11-15). In this way, Indigenizing the law can contribute to “equality of justice, internal empowerment of Indigenous peoples at the community level, and the healing of collective colonial trauma (at 220-221).

Contributing to Law Reform

Social change happens first at an individual level and then moves outwards through relationships of family, community, the land, the planet, as part of a nested system like ripples in a pond. As more people participate in understanding and applying Indigenous norms, the potential exists for the widening of our interpretive legal communities and the improvement of each legal tradition.

In “Truth-Telling 150“, our colleagues at West Coast Environmental Law discuss the individual and collective actions we’re taking to implement the TRC’s 94 Calls to Action. We’ve also stepped up to the specific challenges to law firms set out in JFK’s Law Reconciliation Plan to “critically examine our practices and assess whether we are advancing Indigenous legal systems and perspectives.” “ReconciliAction” is also illustrated through our work product and methods.

Revitalizing Indigenous Law for Land, Air and Water (“RELAW”) is a project of West Coast and the Indigenous Law Research Unit (“ILRU”). Our first RELAW cohort began in 2016, and included six Indigenous partners, our second cohort began in 2017. Since then, together, we’ve researched Indigenous law about environmental governance, drafted summaries of legal principles, and guided community deliberation about how these principles should be applied. Each RELAW project is based upon the people’s own laws and decision-making processes.

ILRU and WCEL share the fundamental belief that Indigenous law is law, that Indigenous laws are part of living Indigenous legal orders, and that Indigenous law can and should be used on the ground today. We understand the process of articulating, revitalizing and applying Indigenous law to be collaborative and deliberative, and we are committed to deepening community-based capacity to engage in this process.

To get a flavor for our work, you can view a short (8-minute) film RELAW: Living Indigenous Laws.

Over the summer of 2017 many us became acutely aware of the reality of climate change, feeling the effects of wildfires, hearing about the floods in Asia and the destruction from hurricanes Harvey and Irma, and seeing the effects on people, animals, fish, trees.

In our RELAW work, we’re reminded how Indigenous legal orders generally respect animals and the natural world, and encourage humans to act on these responsibilities.

Sometimes we worry about the complexity of the environmental and social problems we’re all facing but are reminded that Indigenous legal orders offer important tools for solving complex problems.

One of the goals of RELAW is changing public discourse and increasing the numbers of legal practitioners with expertise in this area. In this way, our work promotes the resurgence of Indigenous laws and the advancement of legal, social, and environmental justice for Indigenous peoples.

As we point out in Indigenous Legal Traditions and the Future of Environmental Governance in Canada:

[I]n the vacuum left by federal environmental deregulation, living Indigenous laws continue to govern and protect the environment. Indigenous legal traditions provide concrete solutions to contemporary environmental [and other] problems. Indigenous laws speak to both the present and future needs of all Canadians offering ways of thinking about complex problems (at 227).

When it comes to reconciliation there’s lots work to do and it’s not just up to Indigenous people to do this work. Lawyers, law professors and judges all have important roles to take on in the transformation of Canadian law to include Indigenous legal orders. In a recent article Jeremy Webber acknowledges the responsibility of law schools; Estella White describes why Indigenous law should inform reconciliation efforts; and the Honourable Chief Justice Finch argues that the honour of the Crown demands that all legal professionals have a “duty to learn” about Indigenous legal orders.

To be sure, there’s lots of work to do and Indigenous people can’t do it alone. Lawyers can step up as moral actors willing and able to accept their responsibility to challenge colonial hegemony by continuously doing the hard work of learning. We’re hopeful hearing young lawyers like our colleague, Georgia, who says:

We take care of what we love and we love what we know. As a lawyer, I have an ethical obligation to learn and uphold the laws of this land, which include Indigenous laws that predate colonization. I am committed to learning from the Indigenous laws in the territories that I live and work on, to upholding these laws in my work and personal life, and to sharing what I learn with those around me. My hope is that through conversation all of us can learn to love more deeply the land and the other beings we share it with, including each other.

Globally, these are tough times and the planet needs each of us to do our best work. We all need to continue learning, growing, and sharing our gifts.

No holding back.

This column was originally published on Slaw – Canada's online legal magazine.

Top photo:  RELAW trip to Tsilhqot'in territory

Jessica Clogg, Executive Director & Senior Counsel
Maxine Maltipi, RELAW Project Manager