About the Author

John Borrows

John Borrows is the Canada Research Chair in Indigenous Law in the Faculty of Law at the University of Victoria and is the winner of both the Canadian Political Science Association’s Donald Smiley Prize (for Recovering Canada) and the Canadian Law and Society Association Book Prize (for Canada’s Indigenous Constitution)..

Books by this Author
Law's Indigenous Ethics
Excerpt

Introduction

 

This is a book about Indigenous rights and their relationship to Indigenous peoples’ own laws in Canada. Its primary objective is to improve this relationship. Using Anishinaabe (i.e., Chippewa or Ojibwe) examples, I examine how Indigenous peoples law could help create healthier Indigenous–government relationships. The Anishinaabe legal lens is focused on the Seven Grandmother/Grandfather Teachings: love, truth, bravery, humility, wisdom, honesty, and respect. Thus, this is also a book about legal ethics. The first two chapters view treaties between Indigenous peoples and governments through an Anishinaabe lens of love and truth. The next two chapters examine the question of Aboriginal title through the ideas of bravery and humility. The following two chapters consider Indigenous law and legal education from the perspectives of wisdom and honesty. The final chapter explores collective responsibilities related to harms caused in Indian residential schools, in the light of Anishinaabe ideas of respect.

 

This is also a work of legal theory that reflects upon the practices, processes, and principles that help form and re-form Indigenous rights in Canada. Along the way, it advances ideas related to agency, self-determination, entanglement, syncretism, pluralism, nuance, power, and anti-essentialism. Since this is a work of jurisprudence, I hope that readers who may not work in my field will nevertheless draw insights from its pages. At the same time, I do not locate my work in any one specific school of legal theory (see my book on Freedom and Indigenous Constitutionalism for an explanation). Nevertheless, the present book is structured to address ideas connected to legal theory more generally throughout the text.

 

At the same time, this book also discusses “black-letter” law and is shaped by my work as a law professor. Thus it is focused on legal doctrine as it relates to Aboriginal rights. This is a constitutional field of law that operates under section 35 of Canada’s Constitution Act, 1982, which states, “The existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.” Each chapter attempts to advance doctrinal concepts connected to the Supreme Court of Canada’s jurisprudence in the area. It tries to advance the field of constitutional law in Canada more generally and to revitalize Aboriginal and treaty rights more particularly.

 

This book also seeks to make policy contributions to enhance legal education. As a result of its comparative elements, my hope is that people who do not teach in my field will nevertheless find more general insights related to legal education in this work. In fact, I also hope this book contains some helpful ideas about Indigenous post-secondary education more generally.

 

Law’s Indigenous Ethics is also squarely within the field of Indigenous Studies. The literature I cite, the methodologies I deploy, and many of my animating ideas are rooted in the scholarship of this field. Indigenous language, values, philosophies, and world views motivate this work. Specifically, my writing takes its context and content from Anishinaabe concerns and sensitivities. To forward these visions I relate many stories from my own community in the following chapters. I strive to give prominence to the voices of Anishinaabe elders, tricksters, monsters, caretakers, heroes, animals, and other cultural figures throughout.

 

Finally, this book is inherently interdisciplinary and highlights societal processes as they involve Indigenous peoples and other citizens. I hope anthropologists, political scientists, geographers, sociologists, historians, philosophers, and others will be drawn into conversations related to the issues discussed herein.

 

I begin by recounting a familiar Anishinaabe story, recast in my own words. Anishinaabe people tell stories to open spaces for instruction and inquiry. Basil Johnston, the elder who told me his own version of the following story, wrote, “Like our words, our stories have several meanings.” In his book The Gift of the Stars, Basil explained the invitational nature of his stories for adding our own interpretations and enhancing our own growth. He said this methodology is embedded in the earth’s own approach to teaching, which we should strive to emulate.

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Recovering Canada

Recovering Canada

The Resurgence of Indigenous Law
edition:Hardcover
also available: Paperback Paperback eBook
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Canadian Justice, Indigenous Injustice

Canadian Justice, Indigenous Injustice

The Gerald Stanley and Colten Boushie Case
by Kent Roach
foreword by John Borrows
edition:eBook
also available: Hardcover
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Braiding Legal Orders

Braiding Legal Orders

Implementing the United Nations Declaration on the Rights of Indigenous Peoples
edition:Hardcover
also available: Paperback eBook
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Resurgence and Reconciliation

Resurgence and Reconciliation

Indigenous-Settler Relations and Earth Teachings
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Excerpt

Introduction

 

Reconciliation and Resurgence in Practice and in Question

 

Reconciliation and resurgence have become ways of describing the field of activities, relationships, and possible futures between Indigenous and settler people. Over the last two decades these terms have been widely used in practice: in community building, relating to the environment, Indigenous and settler governance and legal institutions, business, media, entertainment, commissions, alliances, negotiations, prison reform, and protests. They are also broadly deployed in academic circles. They are the focus of research, teaching, reflection, and activism in university settings and beyond. Movements like Idle No More and Standing with Standing Rock relay these ideas. They are variously used by leaders like Chief Spence of the Attawapiskat First Nation, Chief Stewart Philip and the Union of BC Indian Chiefs, and numerous chiefs and officials in the Assembly of First Nations. The language of resurgence and reconciliation also finds its way into broader political discourse. Federal, provincial, and municipal governments, as well as the media and wider public, invoke these ideas when considering the appalling living conditions of many Indigenous peoples. In particular, the designation of 2017 as the year of reconciliation gave these terms heightened prominence and urgency.

 

As a result of their widespread acceptance and usage, and because so much is at stake, reconciliation and resurgence are used in a wide variety of ways. These terms are continuously contested and reformulated in practice, policy, and academic research. Thus practice-based struggles over reconciliation and resurgence are also struggles over the meanings of the terms themselves. Reconciliation and resurgence have become contestable and contested concepts within the semantic field and human activities in which they are used.

 

For example, some say reconciliation between settlers and Indigenous peoples is an end state of some kind: a contract, agreement, legal recognition, return of stolen land, reparations, compensation, closing the gap, or self-determination. Others argue that it is more akin to an ongoing activity. Some say reconciliation embodies a relationship stretching back 12,000 years, an existential mode of being with one another and the living earth. It has also been associated with treaty relationships since early contact. For some it is the path to decolonization, for others a new form of recolonization. Some insist reconciliation must be resisted, while others see it as an essential process for ongoing relationality.

 

Resurgence is often used to refer to Indigenous peoples exercising powers of self-determination outside of state structures and paradigms. It is deployed by communities as a force for reclaiming and reconnecting with traditional territories by means of Indigenous ways of knowing and being. These individual and collective powers include the resurgence of governance, Indigenous legal systems and languages, economic and social self-reliance, and sustainable relationships with the ecosystems that co-sustain all life and well-being. Resurgence also refers to analogous Indigenous practices in rural and urban centres, universities, prisons, other institutions, and global networks. Some see these as new activities. Others see them as ancient life ways that stretch back through the centuries. Settlers also use the term. It can refer to decolonizing activities, enacted in alliance with Indigenous people or independently, yet in solidarity with them.

 

Some practitioners of resurgence refuse and reject reconciliation based relationships between settler and Indigenous peoples, claiming they are assimilative or colonizing. Others, including many Indigenous people, feel a more nuanced approach is required. They strive to live more holistically and navigate the tensions they experience creative ways. They are uncomfortable with dramatically turning away from their neighbours. While they strenuously resist oppression, they understand their deeper values require more constructively provocative approaches. Isolationism can lead to self-absorption and become marginalizing and disempowering. Dense relationships of interdependency are thus cultivated by many practitioners of resurgence, with many different sites of action, inaction, resistance, and cooperation. Robust practices of resurgence often (though not always) need to be coordinated and nested within robust, non-violent, contentious relationships of transformative reconciliation with supportive settlers, just as practices of resurgence require the same kind of empowering contestation, coordination, and reconciliation within and among Indigenous communities.

 

At times the difference between “separate resurgence” and resurgence and reconciliation (or “resurgence-reconciliation”) has been polarized. Disagreements among practitioners can be divisive in both theory and practice. This volume identifies diverse paths that attempt to move beyond this polarization and the disempowering divisions it generates. We accept critiques and refusals of so-called reconciliation models that threaten to reconcile Indigenous peoples to the unjust status quo. We also acknowledge and accept critiques and refusals of certain types of “recognition” that place the state or its imperial networks at the centre of social, political, and economic affairs. Recognition can be a Trojan horse–like gift; state action often operates to overpower or deflect Indigenous resurgence. Indeed, the contributors to this volume have co-developed these critiques and refusals with others. In turning from critique to construction, we distinguish between two form and meanings of reconciliation and resurgence. The first are those that perpetuate unjust relationships of dispossession, domination, exploitation, and patriarchy. These reconcile Indigenous people and settlers to the status quo, and we strongly reject them. The second are those that have the potential to transform these unjust relationships; these are the kinds of ideas we seek to advance in this book. These are relationships of “transformative” reconciliation. To be transformative they must be empowered by robust practices of resurgence. Robust resurgence infuses reciprocal practices of reconciliation in self-determining, self-sustaining, and inter-generational ways. These unique forms of reconciliation and resurgence coexist in a relationship of gift-reciprocity, as many contributors argue. For example, the creation of resurgent Indigenous Studies programs often (though not invariably) grew from reconciliation efforts with settler partners in university settings. These programs, run by Indigenous scholars, have transformed curricula and teaching in their disciplines over the last twenty years – not only for their resurgent units but also for their partners whose reconciliation efforts were vital to their development. Unfortunately, despite the significant growth of resurgence-reconciliation networks and frameworks, all is not well in the field. Polarizing debates have developed through misunderstandings and/or misuses of the different meanings of resurgence and reconciliation. This volume seeks to clarify this entangled semantic field. Contributors in this book seek to move beyond the polarizing dichotomy of rejectionist resurgence and non-transformative reconciliation to renew the collaborative search for practices of robust resurgence and transformative reconciliation in their work.

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The Right Relationship

The Right Relationship

Reimagining the Implementation of Historical Treaties
edition:Paperback
also available: Hardcover eBook
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