University of Victoria law professor and indigenous law expert John Borrows argued for harmonizing indigenous, common and civil law in Canada's legal system in a Tuesday afternoon lecture sponsored by the Rockefeller Center.
During the talk -- "Living Law on a Living Earth: Aboriginal Religion, Law, and the Constitution" -- Borrows stressed the need for aboriginal and non-aboriginal people to learn about each other's belief systems in order for aboriginal legal tradition to be integrated into the Canadian judicial system.
During his talk, Borrows stressed that the inclusion of indigenous traditions in Canadian judicial practices could benefit aboriginals and non-aboriginals alike.
"There are other legal traditions that exist within the country that continue to guide people's answers to disputes," Borrows said. "This deep and rooted wisdom can give answers not only to the First Nation's people but also may be of benefit to those who have settled among us."
He also analyzed the multi-judicial nature of the United States, referring to the Navajo Supreme Court case hearing at Dartmouth last week. The United States, he said, also has a strong source of indigenous law that should be reconciled with the more familiar common law to form a multi-judicial approach to legislation.
During the lecture, Borrows referenced the Anishinabek belief that the Earth is a living being in discussing the possibility of legal recognition of this concept.
"Rocks are living beings," he said. "That has tremendous legal implications towards what the rights of that rock might be and what your obligations towards the rock are. You can't just do what you want with the rock because that would potentially violate its animacy."
He described a pipe ceremony performed by the Anishinabek before "interacting with the Earth." In the ceremony, those wishing to interact with nature sit in a circle passing a pipe filled with sacred rocks and leaves. The smoke from the pipe sends a message to the creator asking whether their proposed interaction is appropriate.
Practices like that, though protected by aboriginal constitutional treaties, can be difficult for non-aboriginal people to understand and place in a legal context.
"In this process, you're listening for the place and its sense," he said. "This would be hard to describe to the common law and the civil law, but the common law could understand at one level that we're trying to assess whether or not we are respecting the living nature of these beings."
Borrows explained that Canada currently operates under two legal systems: English-derived common law and Roman-derived civil law. Both of these institutions influence Canadian legal decisions. He proposed that this existing pluralism suggests that other systems, such as indigenous jurisdiction, should be included in legal deliberations.
Placing an aboriginal legal scholar or lawyer on Canada's Supreme Court or changing the curriculum of law schools so that courses take a multi-judicial approach, he argued, might be effective mechanisms in bringing the legal systems together.
New Zealand, South Africa and islands in the South Pacific all have linked aboriginal and common law. And in Toronto, Vancouver and Winnipeg, aboriginal forms of dispute resolution are becoming increasingly used for both indigenous and non-indigenous people, he said.
Despite these advances, Borrows stated that harmonization remains a difficult process.
"It's theoretically possible to work out an accommodation between the aboriginal law and the constitutional law, but as questions get piled upon one other in the context of racism and stereotypes, it may not happen," Borrows said.
Borrows, who is Anishabe and a member of the Chippewa of the Nawash First Nation, became a law professor and the Law Foundation Chair of Aboriginal Justice and Governance at the University of Victoria in 2001. His research topics include aboriginal, constitutional and environmental law.
Government and Native American Studies professor Dale Turner had been trying to bring Borrows to campus for years.
"Borrows is trying to bridge legal traditions, and he is really the only person doing that seriously in Canada; he's quite a gem in that sense," he said.
