DOCSLIB.ORG

UNDRIP Implementation: More Reflections on the Braiding of International, Domestic and Indigenous Laws

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
UNDRIP Implementation: More Reflections on the Braiding of International, Domestic and Indigenous Laws UNDRIP IMPLEMENTATION: MORE REFLECTIONS ON THE BRAIDING OF INTERNATIONAL, DOMESTIC AND INDIGENOUS MORE REFLECTIONS ON THE BRAIDINGLAWS OF INTERNATIONAL, UNDRIP IMPLEMENTATION: UNDRIP Implementation More Reflections on the Braiding of International, Domestic and Indigenous Laws SPECIAL REPORT 67 Erb Street West University of Saskatchewan, Room 160, Law Building Waterloo, ON, Canada N2L 6C2 15 Campus Drive, Saskatoon, SK, S7N 5A6 www.cigionline.org www.usask.ca/nativelaw UNDRIP Implementation More Reflections on the Braiding of International, Domestic and Indigenous Laws SPECIAL REPORT CIGI Masthead Executive President Rohinton P. Medhora Deputy Director, International Intellectual Property Law and Innovation Bassem Awad Chief Financial Officer and Director of Operations Shelley Boettger Director of the Global Economy Program Robert Fay Director of the International Law Research Program Oonagh Fitzgerald Director of the Global Security & Politics Program Fen Osler Hampson Director of Human Resources Laura Kacur Deputy Director, International Environmental Law Silvia Maciunas Deputy Director, International Economic Law Hugo Perezcano Díaz Director, Evaluation and Partnerships Erica Shaw Managing Director and General Counsel Aaron Shull Director of Communications and Digital Media Spencer Tripp Publications Publisher Carol Bonnett Senior Publications Editor Jennifer Goyder Publications Editor Susan Bubak Publications Editor Patricia Holmes Publications Editor Nicole Langlois Publications Editor Lynn Schellenberg Graphic Designer Melodie Wakefield For publications enquiries, please contact [email protected]. Communications For media enquiries, please contact [email protected]. @cigionline Copyright © 2018 by the Centre for International Governance Innovation The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of the Centre for International Governance Innovation or its Board of Directors. Published by the Centre for International Governance Innovation in partnership with Wiyasiwewin Mikiwahp Native Law Centre of the University of Saskatchewan College of Law. Cover image: Healing, Jim Logan This work is licensed under a Creative Commons Attribution — Non-commercial — No Derivatives License. To view this license, visit (www.creativecommons.org/licenses/by-nc-nd/3.0/). For re-use or distribution, please include this copyright notice. Printed in Canada on paper containing 100% post-consumer fibre and certified by the Forest Stewardship Council® and the Sustainable Forestry Initiative. Centre for International Governance Innovation and CIGI are registered trademarks. 67 Erb Street West University of Saskatchewan, Room 160, Law Building Waterloo, ON, Canada N2L 6C2 15 Campus Drive, Saskatoon, SK, S7N 5A6 www.cigionline.org www.usask.ca/nativelaw Contents vii Acronyms and Abbreviations 73 Canary in a Coal Mine: Indigenous Women and Extractive Industries in ix Preface Canada Oonagh E. Fitzgerald and Larry Chartrand Sarah Morales 1 Introduction: Challenging Law 85 UNDRIP Implementation, Intercultural John Borrows Learning and Substantive Engagement with Indigenous Legal Orders Part I: International Law Perspectives Hannah Askew 9 The Necessity of Exploring Inherent Part III: Domestic Law Perspectives Dignity in Indigenous Knowledge Systems 95 UNDRIP and the Move to the Nation-to- James (Sa’ke’j) Youngblood Henderson Nation Relationship Joshua Nichols 17 Using Legislation to Implement the UN Declaration on the Rights of Indigenous 103 Asserted vs. Established Rights and the Peoples Promise of UNDRIP Sheryl Lightfoot Robert Hamilton 25 Implementation of UNDRIP within 111 Articles 27 and 46(2): UNDRIP Signposts Canadian and Indigenous Law: Pointing beyond the Justifiable- Assessing Challenges infringement Morass of Section 35 Gordon Christie Ryan Beaton 33 Bringing a Gendered Lens to 121 Strategizing UNDRIP Implementation: Implementing the UN Declaration on Some Fundamentals the Rights of Indigenous Peoples Kerry Wilkins Brenda L. Gunn 133 Conflicts or Complementarity with Part II: Indigenous Law Perspectives Domestic Systems? UNDRIP, Aboriginal Law and the Future of International 43 Mapping the Meaning of Reconciliation Norms in Canada in Canada: Implications for Métis- Joshua Nichols and Robert Hamilton Canada Memoranda of Understanding on Reconciliation Negotiations 141 Artist Credits Larry Chartrand 143 About the ILRP 53 Navigating Our Ongoing Sacred Legal Relationship with Nibi (Water) 143 About CIGI/ À propos du CIGI Aimée Craft 144 About the Wiyasiwewin 63 Rebuilding Relationships and Nations: Mikiwahp Native Law Centre A Mi’kmaw Perspective of the Path to Reconciliation Cheryl Knockwood Acronyms and Abbreviations ABS access and benefit sharing CBD Convention on Biological Diversity CERD Committee on the Elimination of Racial Discrimination DCA duty to consult and accommodate EMRIP Expert Mechanism on the Rights of Indigenous Peoples FPIC free, prior and informed consent GR genetic resources ITK Inuit Tapiriit Kanatami MOU memorandum of understanding NGO non-governmental organization RCAP Royal Commission on Aboriginal Peoples SCC Supreme Court of Canada TK traditional knowledge TRC Truth and Reconciliation Commission UNDRIP/UN United Nations Declaration on the Rights of Indigenous Peoples Declaration vii Preface Oonagh E. Fitzgerald and Larry Chartrand The International Law Research Program (ILRP) of the Centre for International Governance Innovation (CIGI), together with the Wiyasiwewin Mikiwahp Native Law Centre of the University of Saskatchewan College of Law, are pleased to present this collection of short essays discussing how international law, domestic constitutional law and Indigenous peoples’ own laws can work together to bring about full implementation in Canada of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).1 This second report on the theme of braiding international, constitutional and Indigenous laws continues and deepens the conversation broached in the 2017 CIGI Special Report entitled UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws.2 Since the Government of Canada’s “embrace” of UNDRIP at the United Nations Permanent Forum of Indigenous Peoples in May 2016,3 much has happened to set the stage for an ambitious implementation agenda. Yet actual progress remains slow and largely illusory. It is fair to recognize the numerous positive steps taken by the federal government. In September 2017, on the occasion of Canada’s 150th anniversary, Prime Minister Justin Trudeau made an impassioned speech to the UN General Assembly in which he acknowledged that Canada’s first peoples had a history that stretched back many millennia before the arrival of Europeans, and that the nation called Canada was best seen as “a work in progress.”4 He referred to Canada’s colonial legacy, the broken promises and the harms that racist policies have inflicted on Inuit, Métis and First 1 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/ RES/61/295, 46 ILM 1013 (2007). 2 Oonagh Fitzgerald & Risa Schwartz, eds, UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws, CIGI, Special Report, 31 May 2017. 3 Minister of Indigenous and Northern Affairs Carolyn Bennett, “Announcement of Canada’s Support for the United Nations Declaration on the Rights of Indigenous Peoples” (Statement delivered at the 15th session of the United Nations Permanent Forum on Indigenous Issues, 10 May 2016). 4 “Prime Minister Justin Trudeau’s Address to the 72nd Session of the United Nations General Assembly” (21 September 2017), online: <https://pm.gc.ca/eng/news/2017/09/21/prime-minister-justin-trudeaus-address-72th-session-united-nations-general- assembly>. ix UNDRIP Implementation: More Reflections on the Braiding of International, Domestic and Indigenous Laws Nations peoples, and he renewed promises to use domestic implementation of UNDRIP as “a way forward” to correct past wrongs, support nation-to-nation, government-to-government, and Inuit- Crown relationships, and achieve reconciliation. A working group of federal ministers was struck to review “federal laws, policies, and operational practices to ensure that the Crown is meeting its constitutional obligations, and adhering to international human rights standards—including the United Nations Declaration on the Rights of Indigenous Peoples.”5 The federal Department of Justice articulated 10 “Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples,” noting that “The implementation of the United Nations Declaration on the Rights of Indigenous Peoples requires transformative change in the Government’s relationship with Indigenous peoples.”6 The old department of Indigenous and Northern Affairs was dissolved and replaced by two new departments: Crown-Indigenous Relations and Northern Affairs Canada; and Indigenous Services Canada. In February 2018, the prime minister announced that the Government of Canada would develop a Recognition and Implementation of Indigenous Rights Framework, consisting of both legislation and policy. According to the government website this “will ensure that the Government of Canada recognizes, respects and implements Indigenous rights, including inherent and treaty rights, and provides mechanisms to support self-determination. The framework will support Indigenous peoples’ rights as recognized and affirmed in section 35 of the Constitution
Load more

Recommended publications
  • Aboriginal Title and Private Property John Borrows
    The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 71 (2015) Article 5 Aboriginal Title and Private Property John Borrows Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Borrows, John. "Aboriginal Title and Private Property." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 71. (2015). http://digitalcommons.osgoode.yorku.ca/sclr/vol71/iss1/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. Aboriginal Title and Private Property John Borrows* Q: What did Indigenous Peoples call this land before Europeans arrived? A: “OURS.”1 I. INTRODUCTION In the ground-breaking case of Tsilhqot’in Nation v. British Columbia2 the Supreme Court of Canada recognized and affirmed Aboriginal title under section 35(1) of the Constitution Act, 1982.3 It held that the Tsilhqot’in Nation possess constitutionally protected rights to certain lands in central British Columbia.4 In drawing this conclusion the Tsilhqot’in secured a declaration of “ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land”.5 These are wide-ranging rights.
    [Show full text]
  • Studying Indigenous Politics in Canada: Assessing Political Science's Understanding of Traditional Aboriginal Governance
    Studying Indigenous Politics in Canada: Assessing Political Science's Understanding of Traditional Aboriginal Governance Frances Widdowson, Ezra Voth and Miranda Anderson Department of Policy Studies Mount Royal University Paper Presented at the 84th Annual Conference of the Canadian Political Science Association University of Alberta, Edmonton, Alberta, June 13-15, 2012 In the discipline of political science, the importance of understanding the historical development of political systems is recognized. A historical sequence of events must be constructed and analyzed to determine possible causes and effects when studying politics and government systematically. Introductory political science textbooks lament the minimal historical understanding that exists amongst the student body because it is maintained that those “without a historical perspective are adrift intellectually. They lack the important bearings that make sense of Canada‟s unique history, as well as the development of Western civilization and the rise and 1 fall of other civilizations”. Historical understanding is particularly important in the study of indigenous politics in Canada, where there is a constant attempt to link modern and traditional forms of governance. Understanding aboriginal traditions is essential for achieving aboriginal-non-aboriginal reconciliation, and many political scientists argue that misrepresentations of pre-contact indigenous governance continue to perpetuate colonialism. This makes it important to ask how aboriginal political traditions are being
    [Show full text]
  • Curriculum Vitae: Dr
    Curriculum Vitae: Dr. Ken Coates Address: 903B – 9th Street East Saskatoon, Saskatchewan S7H 0M9 306 341 0545 (Cell) University of Saskatchewan Address: Johnson-Shoyama Graduate School of Public Policy Room 181, 101 Diefenbaker Place University of Saskatchewan Saskatoon, Saskatchewan S7N 5B8 1 306 966 5136 (office) [email protected] University Degrees Bachelor of Arts (History), University of British Columbia, 1978 Master of Arts (History), University of Manitoba, 1980. PhD (History), University of British Columbia, 1984. Dissertation: “Best Left As Indians: Native-White Relations in the Yukon Territory, 1840-1950.” Supervisor Dr. David Breen. Academic and Professional Positions Canada Research Chair in Regional Innovation, Johnson-Shoyama Graduate School of Public Policy, University of Saskatchewan, 2012 – Professor of History, University of Waterloo, 2011-2012 Dean, Faculty of Arts, and Professor, Department of History, University of Waterloo, 2006-2011 Coates Holroyd Consulting, Garibaldi Highlands, B.C., 2004 – Vice-President (Academic), Sea to Sky University, Squamish, B.C., 2004 Dean, College of Arts and Science, University of Saskatchewan, Saskatoon, Saskatchewan, 2001-2004. Acting Provost and Vice-President (Academic), University of Saskatchewan, Saskatoon, Saskatchewan, 2002-2003. Dean, Faculty of Arts and Professor of History, University of New Brunswick at Saint John, Saint John, New Brunswick, July 1997-2000. Professor of History and Chair, Department of History, University of Waikato, Hamilton, New Zealand, 1995-1997. Vice-President (Academic) and Professor of History, University of Northern British Columbia, Prince George, B.C., 1992-1995. Professor, Department of History, University of Victoria, Victoria, B.C., 1986-1992. Associate Professor, Department of History, Brandon University, Brandon, Manitoba, 1983-1986.
    [Show full text]
  • The History and Historiography of Natural Resource Development in the Arctic: the State of the Literature
    The History and Historiography of Natural Resource Development in the Arctic: The State of the Literature Ken Coates, University of Saskatchewan 2014 GAP ANALYSIS REPORT 1 K. Coates History of Resource Development in the Arctic The History and Historiography of Natural Resource Development in the Arctic: The State of the Literature Ken Coates, University of Saskatchewan Natural resource development is a prominent and controversial topic in the Far North. While media attention focuses largely on the potential for oil and natural gas discoveries – the extension of the Norway-Russia extraction frontier to North American Arctic waters – the active exploration for and development of mineral deposits has come to feature prominently in the region. For the Governments of Nunavut, Northwest Territories and Yukon, and for the communities across the territorial and provincial Arctic regions, the prospect for economic and social improvements based on cooperative exploitation of natural resources is viewed as an important part of the political puzzle in the North. The recent developments, however, build on a long and complicated history of resource development, albeit one marked more by hope and promise that practical results. This report focuses on the history of the Canadian Arctic and does not examine developments in other parts of the Arctic. The Canadian situation, understandably, reflects the realities of the Canadian North, national and territorial policies, and the actions of corporations active in Canada. The analysis shows that historical research to date has focused on government policies and the macro-level study of the mining sector. Only recently have scholars turned their attentions to the central concern of the ReSDA project, namely the impact of resource developments on communities and methods and approaches that might improve community benefits from resource development.
    [Show full text]
  • SEVEN GIFTS: REVITALIZING LIVING LAWS THROUGH INDIGENOUS LEGAL PRACTICE* by John Borrows†
    SEVEN GIFTS: REVITALIZING LIVING LAWS THROUGH INDIGENOUS LEGAL PRACTICE* by John Borrows† CONTENTS Maajitaadaa (An Introduction) 3 Dibaajimowin (A Story) 4 Niizhwaaswi Miigiwewinan (Seven Gifts) 7 I Nitam-Miigiwewin: Gii’igoshimo (Gift One: Vision) 8 II Niizho-Miigiwewin: Gikinoo’amaage Akiing (Gift Two: Land) 9 III Niso-Miigiwewin: Anishinaabemowin (Gift Three: Language) 9 IV Niiyo-Miigiwewin: Dibaakonigewigamig (Gift Four: Tribal Courts) 10 V Naano-Miigiwewin: Anishinaabe Izhitwaawinan (Gift Five: Customs) 11 VI Ningodwaaso-Miigiwewin: Chi-Inaakonigewinan (Gift Six: Constitutions) 12 VII Niizhwaaso-Miigewewin: Anishinaabe Inaakonigewigamig (Gift Seven: Indigenous Legal Education) 13 Boozhoo nindinawemaaganidoog. Nigig indoodem. Kegedonce nindizhinikaaz. Neyaashiinigmiing indoonjibaa. Niminwendam ayaawaan omaa noongom. Miigwech bi-ezhaayeg noongom. Niwii-dazhindaan chi-inaakonigewin. Anishinaabe izhitwaawinan gaye. I am very grateful for the opportunity to be with you today. I am grateful to be amongst friends. I am thankful to have so many supportive colleagues with us and to know that I am amongst my Elders. Justice Harry LaForme taught me at Osgoode Hall Law School when I was a doctoral student there in the early ‘90s. I am also very grateful for the introductions we received from the Elders, the Chief, and representatives of the Métis Nation. I am thankful we live in a beautiful world. Standing in this room this morning, looking out over the water and seeing Nanaboozhoo, the Sleeping Giant, is a reminder of the power of this place. It was also great to be in the Fort William First Nation’s sugar bush yesterday, nestled between those two escarpments, as the light snow fell on us. It was a reminder of the beauty of the stories that can swirl around us this time of year.
    [Show full text]
  • Towards Implementing the Truth and Reconciliation Commission's Calls to Action in Law Schools: a Settler Harm Reduction Ap
    TOWARDS IMPLEMENTING THE TRUTH AND RECONCILIATION COMMISSION’S CALLS TO ACTION IN LAW SCHOOLS: A SETTLER HARM REDUCTION APPROACH TO RACIAL STEREOTYPING AND PREJUDICE AGAINST INDIGENOUS PEOPLES AND INDIGENOUS LEGAL ORDERS IN CANADIAN LEGAL EDUCATION SCOTT J. FRANKS A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS GRADUATE PROGRAM IN LAW OSGOODE HALL LAW SCHOOL YORK UNIVERSITY TORONTO, ONTARIO August 2020 © Scott J. Franks, 2020 Abstract Many Canadian law schools are in the process of implementing the Truth and Reconciliation Commission’s Call to Actions #28 and #50. Promising initiatives include mandatory courses, Indigenous cultural competency, and Indigenous law intensives. However, processes of social categorization and racialization subordinate Indigenous peoples and their legal orders in Canadian legal education. These processes present a barrier to the implementation of the Calls. To ethically and respectfully implement these Calls, faculty and administration must reduce racial stereotyping and prejudice against Indigenous peoples and Indigenous legal orders in legal education. I propose that social psychology on racial prejudice and stereotyping may offer non- Indigenous faculty and administration a familiar framework to reduce the harm caused by settler beliefs, attitudes, and behaviors to Indigenous students, professors, and staff, and to Indigenous legal orders. Although social psychology may offer a starting point for settler harm reduction, its application must remain critically oriented towards decolonization. ii Acknowledgments I have a lot of people to acknowledge. This thesis is very much a statement of who I am right now and how that sense of self has been shaped by others.
    [Show full text]
  • Reflections on the Evolution of Legal Systems in the Canadian North
    Commentary Refl ections on the Evolution of Legal Systems in the Canadian North Ken Coates* Th ere is a tendency, perhaps primarily among non-lawyers and the general public, to see the law—and justice, its apparent near synonym—as fi xed and unchanging concepts. Th ere is a general belief that certain actions, such as murder and robbery, are inherently wrong and are unacceptable in all societies at all times. We know that laws, legal processes, and punitive systems are created to provide structure for the regulation, control, and sanctioning of human behaviour, and, in the process, to keep a society safe, secure, and untroubled. Th is seems relatively straightforward. Th e reality, of course, is far more complicated. As societies change and become more diverse, the law morphs into something much more intricate. Working with my colleagues on this special issue of the Northern Review focused on law in the Canadian North brought home the importance of understanding the broader contexts of the law and legal processes. For practitioners, the nature of the law has true immediacy and signifi cant real-world consequences, and must be understood in terms of existing processes, effi ciencies, strengths, and weaknesses. For academics immersed in the theory and concepts such as cross- cultural equity, fairness, and eff ectiveness, the law and legal systems are to be investigated and challenged. Both exercises are valuable, for the system must be managed and adjusted appropriately while the larger questions are explored. *Ken Coates, Johnson Shoyama Graduate School of Public Policy, University of Saskatchewan The Northern Review 50 (2020): 235–244 https://doi.org/10.22584/nr50.2020.012 235 Modern legal systems are remarkably convoluted, addressing human behaviour, corporate activities, and government–individual and government to government relationships.
    [Show full text]
  • Curriculum Vitae: Dr. Ken Coates
    Curriculum Vitae: Dr. Ken Coates Address: 903B – 9th Street East Saskatoon, Saskatchewan S7H 0M9 306 341 0545 (Cell) University of Saskatchewan Address: Johnson-Shoyama Graduate School of Public Policy Room 181, 101 Diefenbaker Place University of Saskatchewan Saskatoon, Saskatchewan S7N 5B8 1 306 966 5136 (office) [email protected] University Degrees Bachelor of Arts (History), University of British Columbia, 1978 Master of Arts (History), University of Manitoba, 1980. PhD (History), University of British Columbia, 1984. Dissertation: “Best Left As Indians: Native-White Relations in the Yukon Territory, 1840-1950.” Supervisor Dr. David Breen. Academic and Professional Positions Canada Research Chair in Regional Innovation, Johnson-Showama Graduate School of Public Policy, University of Saskatchewan, 2012 – Professor of History, University of Waterloo, 2011-2012 Dean, Faculty of Arts, and Professor, Department of History, University of Waterloo, 2006-2011 Coates Holroyd Consulting, Garibaldi Highlands, B.C., 2004 – Vice-President (Academic), Sea to Sky University, Squamish, B.C., 2004 Dean, College of Arts and Science, University of Saskatchewan, Saskatoon, Saskatchewan, 2001-2004. Acting Provost and Vice-President (Academic), University of Saskatchewan, Saskatoon, Saskatchewan, 2002-2003. Dean, Faculty of Arts and Professor of History, University of New Brunswick at Saint John, Saint John, New Brunswick, July 1997-2000. Professor of History and Chair, Department of History, University of Waikato, Hamilton, New Zealand, 1995-1997. Vice-President (Academic) and Professor of History, University of Northern British Columbia, Prince George, B.C., 1992-1995. Professor, Department of History, University of Victoria, Victoria, B.C., 1986-1992. Associate Professor, Department of History, Brandon University, Brandon, Manitoba, 1983-1986.
    [Show full text]
  • Indigenous Law: Issues, Individuals, Institutions And
    Fourword: Issues, Individuals, Institutions and Ideas JOHN BORROWS∗ There is a story about a young man who had a dream. In this dream he saw people scrambling up and down the rugged faces of four hills. When he looked closer he noticed each hill seemed to have different groups of people trying to scale its heights.1 He was perplexed. The first hill, to the east, was covered with very small people. Many were weeping and crying; some were covered in blood or lay lifeless at the base. The foot of the hill where they were piled was shrouded in darkness. The shadows and twisted heap made it hard to see how many were gathered there in death, or life. A bit higher, other tiny bodies could be seen crawling over rocks and spring scrub, determinedly edging their way higher over rough terrain. Knees were scraped, hands were red, but their upward progress was noticeable. At other points it was possible to see some totter forward on wobbly legs, through halting steps and tender help from a few around them. Small bits of tobacco would change hands in thanks. Some were laughing and playing, joyfully climbing to their destination. They seemed to be enjoying the challenge that stood before them. They learned from their mistakes, and carefully watched those around them to see how to go on. Yet, every so often one would trip, or lose their hold on the hill, and tumble and scrape to the bottom. A few had reached the top, and stood in the bright yellow glow of the morning sun.
    [Show full text]
  • Recovering Canada: the Resurgence of Indigenous Law
    RECOVERING CANADA: THE RESURGENCE OF INDIGENOUS LAW Canada is ruled by a system of law and governance that largely obscures and ignores the presence of pre-existing Indigenous regimes. Indige- nous law, however, has continuing relevance for both Aboriginal peoples and the Canadian state. In this in-depth examination of the continued existence and application of Indigenous legal values, John Borrows suggests how First Nations laws could be applied by Canadian courts, while addressing the difficulties that would likely occur if the courts attempted to follow such an approach. By contrasting and com- paring Aboriginal stories and Canadian case law, and interweaving polit- ical commentary, Borrows argues that there is a better way to constitute Aboriginal-Crown relations in Canada. He suggests that the application of Indigenous legal perspectives to a broad spectrum of issues will help Canada recover from its colonial past, and help Indigenous people recover their country. Borrows concludes by demonstrating how Indige- nous peoples' law could be more fully and consciously integrated with Canadian law to produce a society where two world-views can co-exist and a different vision of the Canadian constitution and citizenship can be created. JOHN BORROWS is Professor and Law Foundation Chair in Aboriginal Justice at the University of Victoria. This page intentionally left blank JOHN BORROWS Recovering Canada: The Resurgence of Indigenous Law UNIVERSITY OF TORONTO PRESS Toronto Buffalo London ) University of Toronto Incorporated 2002 Toronto Buffalo London Printed in Canada Reprinted 2006, 2007 ISBN 0-8020-3679-1 (cloth) ISBN 0-8020-8501-6 (paper) © Printed on acid-free paper National Library of Canada Cataloguing in Publication Borrows, John, 1963- Recovering Canada : the resurgence of Indigenous law /John Borrows.
    [Show full text]
  • A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education Natasha Bakht
    Osgoode Hall Law Journal Volume 45, Number 4 (Winter 2007) Article 4 Law and Feminism Guest Editor: Mary Jane Mossman Counting Outsiders: A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education Natasha Bakht Kim Brooks Gillian Calder Jennifer Koshan Sonia Lawrence Osgoode Hall Law School of York University, [email protected] See next page for additional authors Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Part of the Legal Education Commons Special Issue Article Citation Information Bakht, Natasha; Brooks, Kim; Calder, Gillian; Koshan, Jennifer; Lawrence, Sonia; Mathen, Carissima; and Parkes, Debra. "Counting Outsiders: A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education." Osgoode Hall Law Journal 45.4 (2007) : 667-732. http://digitalcommons.osgoode.yorku.ca/ohlj/vol45/iss4/4 This Special Issue Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. Counting Outsiders: A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education Abstract In response to anecdotal concerns that student enrollment in "outsider" courses, and in particular feminist courses, is on the decline in Canadian law schools, the authors explore patterns of course enrollment at seven Canadian law schools. Articulating a definition of "outsider" that describes those who are members of groups historically lacking power in society, or traditionally outside the realms of fashioning, teaching, and adjudicating the law, the authors document the results of quantitative and qualitative surveys conducted at their respective schools to argue that outsider pedagogy remains a critical component of legal education.
    [Show full text]
  • LEARNING INDIGENOUS LAW: REFLECTIONS on WORKING with WESTERN INUIT STORIES by Rebecca Johnson* & Lori Groft†
    LEARNING INDIGENOUS LAW: REFLECTIONS ON WORKING WITH WESTERN INUIT STORIES by Rebecca Johnson* & Lori Groft† CONTENTS I Introduction 118 II A Methodology for Learning Indigenous Law from and with Stories—Working with Partner Communities 121 2017 CanLIIDocs 3498 III A Methodology for Learning Indigenous Law from and with Stories—Working with Stories Alone 125 A. An Overview 125 B. Beginning with a Story: The Wife Killer 126 C. BriefingThe Wife Killer 129 1. The Problem/Issue (What is the Main Human Problem the Story Focusses On?) 129 2. The Facts (Which Facts Matter?) 129 3. Decision/Resolution (What is Decided, or How is the Issue Resolved?) 130 4. Reasoning (What Explanation (Said or Unsaid) is Given for the Decision/ Resolution?) 130 5. Bracketing (Are There Unresolved Questions That Could Be Bracketed for Further Study?) 131 D. Synthesizing the Cases 132 1. Overview of Our Process 132 2. Exploring the Synthesis through the Lens of The Wife Killer 134 i. Legal Processes 134 ii. Legal Responses 136 iii. Legal Principles 137 iv. Legal Obligations 138 v. Legal Rights 140 IV Conclusion: Returning to the Stories with a Question 140 * BMus, LLB, MBA, LLM, SJD. Johnson is Professor of Law, University of Victoria. † MSc, JD. Groft is an affiliate of the Indigenous Law Research Unit, University of Victoria. (2017) 2:2 Lakehead Law Journal Johnson & Groft I INTRODUCTION As Jutta Brunnée and Stephen Toope remind us, law is constituted and maintained through ongoing engagement.1 Taking this to be true, we believe that any commitment to law entails a commitment to continue to engage with it.
    [Show full text]