The 180

Canadian law can learn from Indigenous law

John Borrows, Canadian research chair in Indigenous law at the University of Victoria, takes his students to First Nations communities so they can learn about Indigenous law. He explains how Canadian common and civil law could be improved by incorporating elements of Indigenous law.
John Borrows takes his law students to First Nations communities, to teach them about Indigenous law, and says the Canadian legal system as a whole could benefit. (University of Victoria)

When students enter law school in Canada, they may think that they only need to learn common law, or civil law if they are planning on practicing in Quebec.

But the Indigenous peoples of Canada have their own laws, which University of Victoria law professor John Borrows says could benefit the Canadian legal system.

"First Nations' laws are often connected with the land, so there is a way that the law speaks to how we are relating to that land in ways that create sustainability and look to the health of the ecosystems around us," says Borrows, the Canada Research Chair in Indigenous law at UVic.

"First Nations' laws also pay attention to relationality, or relationships, so there is a possibility that when we pay attention to First Nations laws our relationships can be strengthened."

In a land-use planning process, where there may be discussions about taking water out of the ground for bottling, or putting a pipeline through the region, Salish law for example "would enable you to be able to reason by analogy from the principles and the processes that found within those traditions" and come up with the conditions for an environmental assessment process, Borrows says.

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Borrows, who was awarded a Killam Teaching Prize this year,  also takes his law students across the country to First Nations reserves to learn about traditional Indigenous laws.

This experience helps the students realize that common law is not neutral and universal, and that these traditional laws can provide a resource for reasoning and thinking through problems, says Borrows, who has also taken students to his own reserve on the Bruce Peninsula in Ontario.

"[The law students] understand that law comes from many sources. Of course it's found in legislatures and it's found in courts, but they also recognize it can be found in band councils, in community settings," he says. 

So a lot of what we do … is help students see that law can sometimes, from a First Nations' perspective, be literally written on the earth. That is, there are cases like stories that are attached to different animals, plants, ecological formations, and in those stories as they're told … people see precedent, they see authority, they see criteria, they see guidelines, they see measurements for regulation and making decisions.- John Burrows

Borrows, who works with First Nations in Canada to rediscover their traditional laws, has also been involved in similar efforts with indigenous groups around the world, such as Australian Aboriginals who are starting to enter into treaty agreements with the government.

Changes are happening in other countries that could have major implications for Canada, Borrows says.

For example, New Zealand recently incorporated Maori law into its legislation by recognizing a river as having the same legal rights as a living person.

India has also recognized the Ganges River as a legal personality in that country's common law, Borrows says.

"It might sound strange for us to think about having a legal entity that's like a river … but we do this all the time with corporations. Corporations are persons in the common law, and there's all sorts of protections that these persons as corporations have."