‘THE LAW IS EVERYWHERE’
At the forefront of a ‘resurgence’ in legal thought, Anishinaabe law professor John Borrows helped start the world’s first Indigenous law degree
Meet the creator of the world’s first degree in Indigenous law.
VICTORIA—“Welcome to law school,” Anishinaabe scholar John Borrows tells the Star with a grin, zipping his raincoat halfway up as he turns to his students with a soft-spoken question: How does the day’s forest walk with an elder relate to their readings?
The students eagerly tighten their circle around the Canada Research Chair in Indigenous Law. Under a canopy of western red cedar, Douglas fir and broadleaf maple near Langford, B.C., the group is far from their University of Victoria classroom, but the learnings are no less relevant.
On a tour of the woods that afternoon, a Wsanec Nation elder had recounted his people’s creation stories about each local tree species — teachings about domination, power and humility, and how those lessons apply to the elder’s work with Indigenous prisoners.
And now, Borrows wanted his students to make their own connections between story and statute.
As he put it, in a typical Borrows aphorism: “By way of analogy, what are the lessons learned? How do you build upon, change or transform what you see around you?”
It’s that kind of thinking that’s behind a unique four-year program Borrows founded this fall at the University of Victoria Law School with fellow professor Val Napoleon.
The Indigenous law degree is being touted as the world’s first. Students will graduate qualified to practise both Canadian common law, or Juris Doctor, and Indigenous law, Juris Indigenarum Doctor.
“In a traditional law school you’d go into a library and read legal records,” said Sarah Robinson, one of 26 students in the program’s inaugural cohort, after touring the Mary Lake Nature Sanctuary with Borrows and the elder. “But the land, oral histories, or a tree are also a type of record.
“It’s blowing my mind. The law is everywhere and all around me all the time.”
Robinson, who hails from Fort Nelson and Saulteau First Nations in northern B.C., credits Borrows for helping her interpret the law in new ways. “John Borrows is brilliant and incredible; every time he talks, you just want to sit and lap it all up.”
Others feel the same: Dalhousie University called him “Canada’s pre-eminent scholar of Indigenous and Aboriginal law.” His name was reportedly a top pick from Canadian jurists hoping for an Indigenous appointment to the Supreme Court of Canada.
Last year, Borrows, 55, won one of Canada’s most prestigious research awards, the Canada Council for the Arts’ Killam Prize in Social Sciences. At the time, another UVic luminary, political scientist James Tully, noted: “John’s scholarship is leaving a transformative legacy within both Indigenous and non-Indigenous worlds. And he’s opening the path to new generations of Indigenous scholars.”
Raised in Ontario near Cape Croker Indian Reserve on Georgian Bay, Borrows’s relatives fished, hunted and farmed. His uncle was a former chief, his great-grandfather was a councillor for decades, and his great-great-grandfather was signatory to a 1.5-million acre treaty with the Crown.
“They were always trying to find ways to live in accordance with our treaty and ways of life,” he said.
His maternal grandfather was held in a Detroit tuberculosis sanitarium for a decade, before Borrows’s birth, where he immersed himself in European philosophers.
Borrows’s mother, too, read “voraciously,” despite little formal schooling, he said. She ran away to avoid residential school, upset she couldn’t keep her younger siblings from that fate. “She saw her brothers and sisters get scooped away and felt bad she couldn’t protect them from it.”
The plot of land his family farmed was also a voluble teacher.
“I know it sounds a bit poetic, but my mother taught me a lot about the laws found in the cycles of the season, the forests, the winds,” he recounted. “As I went to law school (at the University of Toronto), those messages kept getting threaded back through my life.
“I knew those other laws from childhood; but it became apparent to me there were a lot of places Indigenous peoples were left out, ignored or dispossessed by the law … How might they be reconciled? Or should they be separated?”
Borrows earned four degrees at U of T, his first in politics and history, eventually teaching law there from1998-2001. He holds a PhD at Osgoode Hall Law School, and an honorary doctorate from Dalhousie.
At Osgoode, he created an international Indigenous legal exchange program that still runs after two decades, boasting “well over” 400 graduates, he said. “That was an early start to doing things a little differently.”
He travelled west to teach at the University of B.C. from 1992-98, where he helped launch an Indigenous people’s law clinic that still serves Vancouver’s Downtown Eastside. And after the creation of Nunavut in 1999, Borrows journeyed north to teach the nascent, largely Inuit territory’s future lawyers, lawmakers, jurists and judges.
In 2001, he started nearly a decade of teaching at UVic as well as stints at the University of Melbourne, the University of Waikato Law School in New Zealand, and the University of Minnesota — before returning to UVic in 2015.
Over his career, he became known as a constitutional expert, writing more than 60 articles and eight books, including the award-winning Canada’s Indigenous Constitution.
His scholarship has been cited in Supreme Court judgments, and Borrows “had a real impact on our deliberations within the Truth and Reconciliation Commission,” according to retired justice Murray Sinclair, chief commissioner of the TRC and Canada’s second-ever Indigenous judge.
But for Borrows, the focal point for some time has been setting the foundations for UVic’s trailblazing law program.
Although UVic already offered a plethora of nationally respected law courses on Indigenous rights under Canada’s Constitution — as well as legal studies of Indigenous self-government, environmental rights and other issues — no program had yet specialized in the variety of legal systems used for millennia by Indigenous cultures.
“The good feeling about it is it’s an educational endeavour we’re involved in, of course,” he said, “but I don’t feel I’m so much of an advocate as I am someone trying to bring together ideas, and practise different possibilities.
“To actually teach Indigenous peoples’ own laws, on their own, is pretty unique — this is the first in this way … I’m trying to reconcile Indigenous legal approaches with common law itself.”
A ceremony on Sept. 24 acknowledged the historic first, a rite at once “intimate, simple, sacred and profound,” recalled JID student Lisbeth Haigh-Turner on UVic’s website. “As the doors closed on First Peoples House, the sun poured into the room, filling it with light and heat. The space felt close; the drum beat loudly … When we were asked to stand, what immediately resonated was the depth of responsibility that had been bestowed upon us.”
That evening, Borrows offered a keynote address to dignitaries, scholars, elders, students and politicians.
He is no stranger to public speaking — whether his platform is ceremony, the forest or an auditorium podium. His Anishinaabe name, Kegedonce, came from his third-great-grandfather. It is the diminutive of “to talk” or “speaker.”
Wearing a green Anishinaabe shirt dangling coloured ribbons, Borrows welcomed them in his people’s language — a language gleaned in his youth, and honed in Minneapolis during his five years teaching law at University of Minnesota; as he recounts it, he “took every moment to leave the law school” to learn Anishinaabe from three language teachers. He attends a weekly “language table” with fellow Anishinaabe in Victoria. Then his speech shifted to English: “It’s such as beautiful opportunity we have to celebrate and gather and live a dream — and understand that our dreams make life,” he said. “We have authority in the way that we do the work of law. Law needs love; it needs respect.
“We hope, in receiving this gift, that you take that as a measure for the kinds of work we hope to continue to do as we weave something new out of something old — to deal with things we’ve never even contemplated.”
B.C.’s minister of advanced education, Melanie Mark, who is the legislature’s first elected First Nations woman, described the program as “reconciliation in action.”
“It was easy to say yes to your vision,” Mark told the JID program creators at the ceremony, her voice cracking with emotion. “This program, this world-class, first-of-its-kind Indigenous law program … is because we’re paddling together.”
Mi’kmaq lawyer Pamela Palmater, chair of Indigenous governance at Ryerson University, said Borrows’s work signals a major shift over her 20 years in law.
“When I went to school, the whole concept and the only courses you could take were in Aboriginal law,” she said in an interview. “But it wasn’t ‘Indigenous’ law; it was just Canadian laws that relate to Indigenous people.
“And it was primarily litigation (lawsuits) — that was the extent of what people learned; peo- ple weren’t even having this conversation, at least not in law school.”
In the years since, hundreds of groundbreaking Indigenous constitutional challenges have shaped decades of reforms across the country, forming what regulatory lawyer Bill Gallagher calls a “First Nations winning streak” in his books
Resource Rulers and the newly published sequel Resource Reckoning.
But Palmater credits four B.C. scholars in particular — Borrows, Napoleon and Taiaiake Alfred at UVic, and Glen Coulthard at UBC — with completely transforming the conversation.
“Everybody’s heard of John, I’m a huge fan of his work,” she said, revealing that 10 years ago, he was the external reviewer for her Doctorate in the Science of Law thesis — which she adapted into her book Beyond Blood: Rethinking Indigenous Identity and Belonging.
So when Palmater heard about UVic’s Indigenous law degree, and its Juris Indigenarum Doc
tor (JID) certification, she reached out to Borrows. “It is fantastic and so exciting,” she said. “As soon as I heard about it, I contacted John Borrows and asked, ‘Is there something for people who are already lawyers to get certified JID?’
Amid hopes that Ryerson will set up a law school, “my first push is going to be for an Indigenous law course, not just law about Aboriginal people.”
That’s because the field of legal study is no longer just about suing for Indigenous rights or recognition under Canada’s laws. Nor is it merely swearing an oath with a feather, or burning sage in court.
She and other jurists argue Indigenous people should take back their authority to create and enforce their own laws, asserting sovereignty within their traditional territories. That’s a far more radical idea than just fixing Indigenous underrepresentation on court benches and overrepresentation in jails.
“What’s changed in my intervening 20 years as a practising lawyer is we’re asking, ‘Can we do this, to kick the colonizer out of our head and think from our own perspective?’” she said. “No one’s going to grant you sovereignty or give you the right to be a nation.
“We can’t hope to get out off the cycle of racial discrimination by tinkering with their processes; we have to do our own.”
It remains to be seen whether the JID degree could help spark such a fundamental change to the Canadian legal practice or profession.
As Borrows puts it, “How could you structure law around concepts like love, truth, or honesty? Or in Indigenous constitutions, they’ll talk about the authority their leaders have, and rights their communities have … We’re developing legal language to try to give some force to those aspirations.”
But the answer most likely lies not in the program itself, but its future alumni. Borrows’s previous pupils have gone on to work on First Nations’ self-government models, band policies, environmental impact assessments, land claims negotiations and civil rights cases.
One of those graduates, Kris Statnyk, has been an associate at Mandell Pinder LLP in Vancouver since 2014.
There were only four other Indigenous students in his year’s law program then, he recalled, but Borrows’s approach to teaching helped Statnyk find his path.
“(Borrows) creates a very supportive environment for Indigenous students, and his approach to teaching is quite different than anything I’d ever had in my undergraduate degree,” Statnyk, who is from Vuntut Gwitchin First Nation in Yukon, said in an interview in his law office, as he pulls Borrows’s 2010 book Drawing Out Law: A
Spirit’s Guide from a bookshelf otherwise full of heavy legal tomes.
“John makes the argument that our Constitution is actually an Indigenous constitution as much as it is made up of French and English as two founding people. When Canada was founded, it wasn’t just founded on common law principles but also Indigenous legal principles … Indigenous peoples had a much more prominent role.”
Back in the forest beside Mary Lake, Borrows’s students mull the day’s curriculum, in particular the Wsanec story of the mighty Douglas fir tree, once haughty ruler of the land but humbled in death: its fallen body overtaken by the smallest seedlings, nourished by its decomposition.
Borrows asks his students how the tale’s metaphors might hold legal analogies. Which leads to another Borrows aphorism: “Law is about how people organize their relationships in patterns. Those patterns flow from the use of the earth, from stories and from songs.”
His students discuss power, inequality, and similarities to other stories they’ve heard from other cultures, peppered with anecdotes from their own communities, Indigenous or otherwise.
“It’s not like we can start with a statute or guidebook, ‘Here is Wsanec law,’” Borrows tells the class after each has shared. “It’s about walking along with people who know what they’re doing, and us gathering possibilities … for whatever we’re doing.”
There are a litany of ways his students could end up doing law, he says: perhaps child and family services, or environmental protection, economic development, creating school curriculums, drafting legal memos, or doing resource planning for a community — the hope, Borrows said, is to use law “to sustain, to be healed or revitalized.”
“This is something we’re doing as we’re going along,” he mused.
“I don’t want to get over-poetic about this, but the analogy is really important for the Indigenous field school and the Indigenous law degree as well: It’s like building the canoe as we’re actually sailing.” The Star is profiling 12 Canadians who are making our lives better. Next week we talk to anti-bullying champion Lisa Dixon-Wells.