The Every Lawyer

Conversations on Calls to action 42, 50, 51, 62 Recognition of Aboriginal justice systems

Episode Summary

President Brad Regehr discusses the recognition of Aboriginal justice systems with John Borrows and Naiomi Metallic.

Episode Notes

President Brad Regehr discusses the recognition of Aboriginal justice systems with John Borrows and Naiomi Metallic.

Professor John Borrows is the Canadian Research Chair in Indigenous Law at the University of Victoria, and has written extensively on Indigenous legal traditions. He is Anishinaabe/Ojibway and a member of the Chippewa of the Nawash First Nation in Ontario.

Naiomi Metallic holds the Chancellor’s Chair in Aboriginal Law and Policy at Dalhousie University’s Schulich School of Law. She’s been on the Best Lawyer In Canada list in Aboriginal law since 2015. She is from the Listuguj Mi’gmaq First Nation in Gespe’gewa’gi (Gaspé region of Quebec).

Click here to register to The Path - Your Journey Through Indigenous Canada

Naiomi Metallic participated in a previous episode  with former president Ray Adlington Conversations with Indigenous Lawyers

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Episode Transcription

Conversations on Calls to action 42, 50, 51, 62 Recognition of Aboriginal justice systems

Male Presenter: This is The Every Lawyer presented by the Canadian Bar Association.

[00:00:08 - 00:00:15 - Music]

Brad Regehr: Tansy, bonjour, hello everyone, welcome to Conversations with the President.  I'm your host, Brad Regehr from Winnipeg, located in the Treaty 1 territory in the heartland of the Métis nation.  This episode is presented by Lawyers Financial.  Get expert advice, and quality insurance, and investment with Lawyers Financial.  And because they're not for profit, you get exceptional value.  Get started at lawyersfinancial.ca.

The 2015 Truth and Reconciliation Commission Report contained 94 calls to action, things that need to be done in order for reconciliation to take place.  In this episode, we're going to discuss calls to actions 42, 50, 51, and 62, all of which deal with recognising and implementing Aboriginal justice systems.

North American colonisers were prejudice towards the written word.  Because indigenous peoples didn't have libraries stocked with law books, European settlers could more easily disregard their legal traditions and systems of justice.  After more than 150 years of European-based laws, what would it look like to recognise and implement an Aboriginal justice system, and whose laws are we talking about?

Professor John Borrows is the Canadian Research Chair in Indigenous Law at the University of Victoria, and has written extensively on indigenous legal traditions.  He is Anishinaabe Ojibwe and a member of the Chippewa of Nawash First Nation in Ontario.

Naiomi Metallic holds the Chancellor’s Chair in Aboriginal Law and Policy at Dalhousie University’s Schulich School of Law.  She has been on the Best Lawyer in Canada list in Aboriginal Law since 2015.  She is from the Listuguj Mi'gmaq First Nation, and Gespe'gewa'gi.

Naiomi, John, welcome to the podcast.  Thank you for being here.

John Borrows: It's great to be here.

Naiomi Metallic: Yeah.

Brad Regehr: Canada’s indigenous peoples are not homogenous, and neither are their legal systems.  For many, the law is tied to land and to tradition which can vary widely.  What are we talking about when we talk about implementing indigenous law?

John Borrows: So for me, it's understanding that law is something that's functional, it has an application, and so I think about standards, principles, authority, criteria, guideposts, signposts, measures, that is things that we look to, to make decisions as we regulate our affairs and resolve our disputes.

Naiomi Metallic: I would probably add, I agree with all of that, of course, and would add to that that I think it's really important for indigenous peoples, as a matter of justice and as a matter of having greater control over their lives, to be able to have access to all those things that John just mentioned.  And that it brings a legitimacy to the work that they need to do and to the wellness they need to bring to their communities.

Brad Regehr: What do you think the difference are between indigenous and European legal traditions?

John Borrows: Well, the verb “focus” within Algonquin languages, of which Mi’gmaq and Anishinaabe are both a part, means that we’re looking to conjugate as opposed to classify when we think about law.  And, you know, verbs are about action, and so this idea of conjugating action or inviting participation, seeing that law is not just specialised in parliaments or legislatures, given to courts that are assisted by lawyers and judges.  But in fact, the community itself has a role in continually making and remaking the law and participating in a more diffuse way to guide our affairs, provide the criteria, as I mentioned earlier, to get us to these regulatory affairs, these disputes that we need to resolve amongst ourselves, and amongst ourselves and those of other nations.

Naiomi Metallic: Yeah, and I think what I would add to that is I've only – you know, John is the sort of grandfather of all this.  Not to age you because you’re very young-looking, John.  But, you know, I mean you are the leading thinker in this in Canada and have been writing about this since – well, for a very long time.  I am only real new to this.  I've started teaching it here at my law school in the last couple of years, but still very much consider myself a student of it, and very excited about it.  And I've taught a methods course here at our school for the last couple of years, but it's been interesting to teach this to our students.

You know, we don’t have a trans systemic programme like you guys have at U Vic, but my students, you know, one of the first things we sort of talk about is legal theory, right, and this idea of positivism, everything is top-down from the state, and that it's only the state and the very structured regimes within it, as you say, who are making decisions.  And, you know, we start to unpack that and see that even that, that's a sort of – even a myth within, you know, the Canadian common law and civil law systems, and it's far more complex and nuanced when you look at it.

But when you start to unpack it and think about what the role of law ought to be in governing our relationships with each other, my students often will observe that.  They say, “Geez, our Canadian system really doesn't allow for that much participation.”  And we have these ideas that rules are rules, and rules come from lawmakers, and they realise that individuals all have a role to play in how they behave with each other, and vis-a-vis other things in creation.

And a lot of them take a big takeaway that they see as seeing the law very different, and even questioning Canadian law as not – and institutions as not necessarily being as responsive as it should be to our roles as citizens engaging with each other.

Brad Regehr: Do you think there's any similarities between European and indigenous legal traditions?

Respondent: I do, and we are both looking for these standards, principles, criteria, authority, measures, signposts, guideposts to help us take action in the world, that is it's not a free for all, there is a patterns to the way that we want to organise our behaviour.  So we're both searching for patterns, we're both looking for ways to ensure that there's a sense of certainty and order and predictability.  It's just the case that what we choose as those standards, and the way we go about facilitating that order, has a different emphasis.

Naiomi Metallic: Yeah, that's an excellent answer.  What John said.  Yeah, I mean, again, John has thought about all of these things much longer than I have.  I can only draw on the experience that I've had and trying to teach this to my own students for the last couple of years.  And, you know, they’re – what we see when we start to like really put Canadian common law and civil law under sort of a microscope, is that there are lots of ways that there are similarities.  Exactly as John says, we are searching for those standards, guideposts, et cetera, that – and principles that guide how we're supposed to live with each other.

And, yeah, far more similarities when you really get down to it, right.  When you start to see law as not these sort of discreet – you know, contract law, family law, the way we've sort of really loved to put everything in categories and boxes, but it's about how do we address harm?  How do we address how we're supposed to engage with other beings in creation?  And those are the same things that Canadian and civil laws are answering, but it's interesting when you sort of take off those strict sort of labels or characteristics, and sort of look at it, you can start to also ask like is this what we need?  Is this appropriate?  Are these the standards that should be guiding us?

And I think that’s a real – I think that’s something in teaching the methods course that I have been teaching for the last couple of years, that I think, again, students really appreciate starting to see that law is not this premade thing, but it is something that is crafted by humans, and that should always be, and can always and should always be in a – we should be in a dialogue about it and with it.

Brad Regehr: Well, let’s maybe like explore that.  Both of you teach.  John, you employ indigenous teaching methods in your courses, and Naiomi, you teach a course in practicing indigenous law.  How do you – and I – years and years ago I taught undergrad students sort of the classic Aboriginal Law course.  And, John, I used your textbook.  And, for example, at the beginning of that textbook you have a – there’s a story that is part of the reading and, you know, there I was teaching undergrad students and I’m – how do you teach that to students?  Can both of you expand a little bit?

John Borrows: Well, like a lawyer, I say it depends, because the idea is that  you’re never just teaching materials, you’re teaching people, and different people, different audiences, have different interests and ways that they learn, and so it’s always trying to be responsive to the people that you’re interacting with and developing a relationship as a result.

And so if you’re thinking about teaching people rather than materials, then there is this necessity of understanding the ways that you can touch on different interests that folks have.  Sometimes I do teach indigenous law through stories.  Stories that are old and well spoken of in our tradition, but also sometimes more contemporary stories.  I also do a lot in breaking down the language.  Both Mi’gmaq and Anishinaabe are morpheme languages, are polysyllabic, and there’s a lot that you can learn as to how the language is put together that directs us to judgment, that directs us to relationship, as I mentioned earlier, about the verbs and participating with one another.  And it actually also directs us to the natural world, because often these sounds in the language are to correlate with the rivers, and the birds, and the plants, and the animals that surround us.

And so it’s trying to lead people from perhaps what is familiar to them, and then go on a journey to take them through ideas and understandings that they might not initially appreciate or have access to, but as you go from the familiar to the less familiar, they can see the relationship.  And then, again, to talk just about – we’re talking with people, not just materials, then you can bring in the written word as appropriate to sort of find points of connection, again, for them after you’ve done this.

Or there’s this study in law and social sciences that talks about how to be persuasive.  And to be persuasive is to both break connections and make connections.  You can never just merely break connections for people, there always has to be something that comes along the side that makes connections as well.  And ideally, it’s the students themselves that are breaking and making those connections, that their agency is empowered rather than forcing something on them or insisting that this is the right way or the only way, you hopefully invite them on that journey of themselves questioning what they think law is and how it might relate to how they practice and act in the world particularly in relationships to the communities that we’re talking about when we’re dealing with indigenous peoples.

Brad Regehr: Naiomi, how do you teach this to students?

Naiomi Metallic: Yeah, so I’ll talk about the course that I’ve been teaching.  I feel I’m prefacing every answer with, “I’ve just started …” right?  So I don’t pretend to have all the answers.  I’ve been doing this for two years, and if I can take a brief sort of – a couple of sort of brief asides first.  You know, what John was saying about the language and using stories as well, I – my father, he has passed away, but he was a Mi’gmaq linguist.  And, you know, the way things were when I grew up, we weren’t actually speaking the language very much at home, so I’ve come to learn it as a second language.

But my sister actually became a Mi’gmaq teacher, so she is my teacher now, I take lessons with her weekly via Skype.  But there are some things so exciting about learning the language but also seeing  the possibilities that it can have for showing us Mi’gmaq law.  So, anyway, that’s an area that I am just starting my journey on.  But, yeah, and our language is so exciting that it is made up of morphemes like John says, and there is so much that you can learn from it.

Anyway, a little digression.  OK, how do I teach?  Well, first of all, let me talk a little bit about – I do teach Aboriginal peoples in the law, basically Canadian law as it relates to indigenous peoples.  I also teach part of that in my constitutional law course.  And I was feeling quite dissatisfied for the past few years of – because I was just teaching that law, and I actually kind of finding depressing to teach it a little bit because the doctrines are still really problematic, they're undergirded by the doctrine of discovery and other problematic doctrines.

But I've really, in the last year or so, taken – I've told this year's class that this is – you know, we're not – I'm not teaching this course so you just go apply these really problematic doctrines and don't think about it otherwise, and we are – you know, the whole class is sort of set up of introducing them to various tools that they can be using to challenge that law.

And that includes indigenous law, that includes the UN Declaration on the Rights of Indigenous Peoples, it includes treaty federalism, and at various points where we keep coming back to those tools and using them at each point that we're at.  And I think they're enjoying it quite a bit more, and I'm enjoying it quite a bit more because it feels quite a bit more hopeful to see that there are ways that we can unpack some of this.

So I am bringing in indigenous law in my Aboriginal peoples’ law course in that way, and trying to really show examples where indigenous law can be used in informing Aboriginal law.  We're doing treaties this coming week and talking a bit about the restoral case, and how Anishinaabe law was used there to inform the interpretation of the treaty.  That was pretty exciting.

And in the course that I am teaching, it's a methods course.  So half of it – well after we kind of get through though why indigenous law needs to be practiced in Canada and that all lawyers should know it, and addressing the why of calls to Action 27, 28, and 50 as they relate to indigenous law, then we are beginning to unpack the how.  Not all the how, because the how is huge, but the how,  and the how do indigenous people after centuries of colonialism, and especially the last 150 years of imposition of Canadian laws, how do we revive our legal systems.

And, yeah, looking at some of the really exciting methods that can be used to draw out our laws from stories, as John was saying, from the land, from the language, and starting to look at how we can use that.

And the showcase of my class is that we use the story briefing method.  I mean we look at – we spend several classes on different methods, but we do do one where we read five or six Mi’gmaq stories and then use the story case briefing method, that has been particularly developed by Val Napoleon and Hadley Friedland, and create a framework of Mi’gmaq legal principles, and we might supplement that with other principles we’ve seen throughout the course.  And then they actually apply it to a fact pattern involving a not so fictitious local Mi’gmaq community, and they apply that, and they – we actually have a moot, and they argue solely from the basis of those principles just to give them a sense that it is doable and practical, and they really get a lot out of it.

And they write a judgment, also, towards the end of the class, sort of playing with those principles as well.

Brad Regehr: That sounds amazing.  For both of you, what – you have these fresh-faced students come into your classes, and, well at least in first year, maybe by third year they’re not so fresh anymore.  What are you hoping to impart on these students.

John Borrows: I think the idea is that they engage in their learning journey, that they become self-reflected, that they take responsibility for understanding the materials.  You know, you can only do so much as a teacher to gesture towards and point towards an opportunity that then they can take to become lifelong learners.  And so creating some enthusiasm around the materials, encouraging the students that they can do it.  Often there's that worry or wonder that they're not up to the task, but I’ve found over my 28 career that of course they are, and letting them know that and telling them that in many different ways is an important dimension of that.

It's also the case that they can become self-reflective by getting exposed to different perspectives that are there within the materials, and that is also there within the classroom.  So trying to invite different points of view and not have a party line, or so just one ideological perspective that we take, but understanding that Anishinaabe law, at least, is built through counsel, and that counselling process is respectful of the different gifts that we bring to that side.

And also encouraging disagreement.  Disagreement is really key for working with law, because law is not just about consensus and finding that moment of judgment, we're all together, but also understanding that there's need to disagree, but do so agreeably so that we can continue to have a conversation through time with the students.  So we spend time talking about the importance of disagreement to law, and try to model that in the way that we interact with one another.  You know, we teach trans-systemically here at the University of Victoria in our joint law degree, Indigenous Law, and the Common Law, and that gives the students an opportunity to see the perspicuous contrast and the vocabularies of comparison.

And we kind of model that trickster that's within many of our different traditions, Glooskap, or Nanabozho, or Raven, or Coyote, or Old Man, that is understanding that when we put different perspectives together, they don't always match.  And that’s a productive place of seeing where that gap is and what we can learn when we sit with that gap.

So, you know, yesterday I was teaching freedom of expression.  We talked about the [Kigster? 00:21:11] case, and we talked about the most recent ward case that’s been argued before the Supreme Court of Canada where a comedian ridiculed a disabled man, and the question was whether or not freedom of expression allowed that to occur.  And so we took that point up very strongly in the Canadian context, we did that for an hour, but then we looked at a Navajo case that talks about freedom of expression that also put responsibility in the context of freedom of expression, having expression that occurs relationally.

And then we went to some Anishinaabe stories about freedom of expression from sort of time beyond time, and then some more contemporary stories there as well.

So the point that I'm making is that if students can find their voice and recognise that they can be who they are, and then learn in relationship to who they are, and reach out to open their minds to other points of view, then they become self-educators through time as they then have the tools to go out and do it on their own, and not just have it sort of spoon-fed to them, but they themselves become the hunters and the fishers and the gatherers of law on their own as they find a way to sustain themselves through their practice into and beyond law school.

Naiomi Metallic: Yeah, I think that that's a huge thing of the – you know, I think that teaching these materials are sort of one of the above all sort of impacts, this is opening of the mind and becoming a much more sort of flexible and nimble thinker, but also going out and looking for answers.  So I would say that's part of what I hope to achieve or impart.

In the course that I teach, it’s  interesting, we have quite a large indigenous population I guess for the relative size of our school.  So my class is usually a good mix of indigenous and non-indigenous students.  And to some extent I have not exactly different expectations for them, but sort of how the course impacts them can be a little different.  I think it’s an upper year voluntary class, like non-mandatory, and, you know, I think there’s a whole discussion we can have just around sort of mandatory courses.

But the ones who want to take my course are – you know, they’re not going to be people who are – their minds are already closed against stuff like this.  They want to know more, they want to – they’re open-minded.  But I think one of the things sometimes is they come just knowing that they’re interested but not knowing much else about the subject and maybe have come to the topic with a certain romanticised view of things.  And what I hope to arm them with before they go is to know that it’s a lot more complicated, and it can be difficult, but also arming them with the tools to be able to be good allies, and to also know about the different methods that they can work, and how they can support communities.

And, you know, we do talk about the difficult things and the hard things, this is not just a – it can be overly romanticised, I think, in terms of like how hard it might be for communities to start doing this work, and it will involve debate and discussion.  And I guess for the non-indigenous students, what I hope I’ve armed them with by the time they go, is to see indigenous  people as reasonable, and rational, and resilient, and also to know that there’s complexities and difficulties, but not turn away when something might get tough, right?  To say, “Oh geez, it’s just too complicated, maybe I’ll go spend my time on some other topic.”  So I hope that they’ve even solidified more there the commitment to the allies.

And with indigenous students, the sort of hope, I guess, or expectation is just real empowering in, I think law school, particular learning about common law.  And I even try to give my  indigenous students in particular who take my Aboriginal Peoples in the law class, and even constitutional law, like trigger warnings.  Like this will – learning about Canadian law isn’t – you know, and how it’s treated our people is no picnic.  And I think that that can be quite hard and also sometimes I think demoralising.

But what I see with our students who take the indigenous law course is that it is very empowering for them.  And for some, they said that it was the highlight of their law school career, and to know that there’s a place that they can – that there is a role for the way that their communities think, and a role for them, perhaps, in doing this work.

I just think I have one particular student that I knew that this class would just be really great for him, and he’s very brilliant but was getting really quite jaded with law school.  And he took the indigenous law course.  And I think my favourite was I got a text from him at – like on a Friday night, saying he was reading Darcy Lindberg’s Beautiful Creeness which is an amazing article, but how it just kind of just changed him.  And he'd never read a law article on a Friday evening, and this was just – and he's been writing and thinking like in the same vein as the way Darcy has since then.  It’s wonderful to see that.

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Brad Regehr: Yeah, we’ve talked a lot about students.  What about for those of us who are a bit longer in the tooth, or much longer in the tooth?  You know, I went to law school in Manitoba in the Nineties, and we didn’t have these courses, we sort of had a – you know, the standard seminar course elective where basically the students did presentations on their papers.  What about practitioners who, I guess, both want and need to learn about this?  What would you say to them?

John Borrows: You know, there’s some really good CLE opportunities out there that are very innovative that could be land-base, they could be course opportunities in intensive formats, they have courses that are conventional type of CLE over a couple of hours with a lecture.  And there's also the opportunities to do pro bono work, and through pro bono work find yourself intermingling with the area in a new light.  Hiring students is a huge thing for lawyers.  They bring that energy in and those ideas in that are coming from the courses that they're taking like from Naiomi, and Hadley, and Val, and others, and so there’s kind of a renewal that occurs if you can see yourself learning with your students as you’re on that path as well.

And then again, this point I was making about life-long learning.  If we adopt an indigenous ethic, we see ourselves as just passing along something rather than owning it, or saying that we’re the expert in this, we’re just the latest generation to try to do the best that we can, and perfection is not expected, it’s the idea again that we would participate with one another, that we would see this as a verb, and we would come in wherever we are on our learning life’s journey and find a place of possibility in that engagement.

And so there are many just different ways that we could find that, or a possibility, even if we’re not in the law schools at this moment.

Naiomi Metallic: Yeah, we, since I’ve been at the school, we've added quite a few more courses and we've got a new hire coming in who's another Mi’gmaq woman, so that’s very exciting, so there’ll be even more courses.  We have offered a certificate  for our students because they’re now enough courses to permit that, and one of the funny – or not funny, but wonderful things about that is that there’s been some attention around that, and we’ve got people reaching out to us, practitioners, saying “Boy, I’d really like to have that certificate.”  So I think there’s a real interest that I’m seeing right now that I don’t – capacity-wise we’re not at that point to be able to, but I think that that would definitely be something.  I mean I’m interested in that both not just for practicing lawyers, but also something adjacent to that for community members from our First Nations as well.

But I think that things are growing.  As I say, we’ve added two new Mi’gmaq professors to our law school recently, there are more grad students who are coming about, and John, through U Vic will be having a national centre, and I think that there can be some opportunities there, a national centre on indigenous law to think as kind of this collective of indigenous law professors, and plus – and be able to maybe think about what we might offer in terms of additional CE, CLE, or programmes for lawyers, because I do think that there’s a real growing interest and that makes me  very happy.  I also would put on our to-do list, John, not that it’s – yours is, I’m sure,  very long, but we also have to look at judges as well.

Brad Regehr: My podcast series is about the calls to action, so I should probably ask you each a couple of questions about specific calls to action.  But before I do that, I want to ask you about an experience that I had and your viewpoints on it.  Probably 20 years ago I was working with a First Nation here in Manitoba, and they purchased some land that they were going to add to their reserve.  And the land in question had some public utility infrastructure on it, and as part of the additions to reserve process that interest had to be accommodated somehow.

And the public utility was insisting upon this form of easement interest, and I remember being at a meeting, and the chief and council were there, and the lawyer from the public utility was just insisting this was how things had to be done.  And one of the councillors spoke up and he said, “This isn’t how we've done things on the existing reserve land base that we have right now.  When we need this infrastructure, we call you guys up, you come out, we show you where you need it, and we do a council resolution and you put the infrastructure in and that's that.”

And the layer just scoffed at that and said, “There's no way, we've never done that here or anywhere else, we’ve always had this easement interest.”  And, you know, and my Western trained mind was going “Yeah, why would they have done that?”  Whereas the other part of my brain was going “There’s something that this counsellor was saying.” And subsequent to that,  one of the elders said the same thing, and I went “There’s something here, and I don’t know what it is.”  And so especially as I was driving back to the city and thinking more and more about it, and I went into the land registry system and surprise, surprise, this public utility had never, ever been issued an Indian Act Permit, or an easement or anything for any of the probably hundreds of miles of infrastructure they had on this First Nations reserve.

And then the next meeting, it was very interesting because the dynamic of the table had changed radically.  Did I experience an indigenous legal tradition there?  I mean it was – you know, there's a humorous aspect to it, but there's – it was just something so moving about it as I think about it, years later.

John Borrows: I really love that example because it does illustrate what we were trying to talk about earlier, which is law is something you do, it’s not something that’s just done to you.  And so here are these counsellors and elders that are trying to work with a lawyer and create law together, co-determine the way that they might interact in this space, to have different interests in, and be present there, and yet recognise that this is going to be reserve land.

And so the example is amazing because it shows that it should be multidirectional in the way that we function, that there’s room for reciprocal elucidation here, and to the extent that that lawyer wasn’t taking those cues and recognising that law is a process of problem solving, then we’re not necessarily doing our work in an appropriate way.

And what’s also interesting is it’s not just an example of indigenous law, but it’s an example of  how the addition of indigenous law can actually redirect us back to the legislation in this case and cause us to see something that wasn’t being taken up by that utility and that context.  So we often say that teaching trans-systemically is not just about the resurgence of indigenous law, it’s opening up new possibilities for the common law and legislation to see that in a new light.  And to the extent that we have the resurgence of indigenous law, and the resurgence of the common law in ways that are participatory, in ways that don’t just have this top-down effect, but really do engage us in a democracy that facilitates the dignity and worth of different folks that are trying to get their points of view across, and then coordinate that with some sense of certainty as these agreements are put together.  I really think that that is a case study for indigenous law.

And I’d like to actually pull out this call to action which is two lawyers through the Federation of Law Societies to receive appropriate cultural competency training which includes all these histories of residential schools, and [UNDRIP? 00:36:39], and treaties, and Aboriginal rights in indigenous law, and Aboriginal Crown relations, but also says “Requires the skills-based training and intercultural competency, conflict resolution, human rights, and anti-racism.”  This 27th call to action just fits to this example you've given us because it shows if that lawyer could have pulled on that intercultural competency, and have the skills based around conflict resolution that had this context of how indigenous peoples are in their own laws, and then how their own laws relate to the Canadian state.

There's just so much room for adding to our opportunities and possibilities as lawyers.  It gives us more tools, and more off-ramps, and more opportunities, as I said, and that's a good thing in my view.

Brad Regehr: Naiomi, what do you think of my example?

Naiomi Metallic: What John said.  No, John, I mean that's a beautiful answer and it just had me reflecting, ‘cause I practiced for 10 years, and primarily like you, Brad, like working a lot with communities, but working pretty well with Canadian law and how, you know, when you sometimes just come from that vantage point it almost looks like there's voids and stuff like that that are created by the Indian act.  But I think that's just a construction of …  So, you know, your example makes me think of, you know, that I have recently taught my students about the Certificate of Possession on reserve and like, you know, how so many communities don't even go with Certificate of Possession and they have customary allotments.

And there's even like a really recent case I brought to my students' attention where the courts still really just look at, “Well, there’s nothing in the Indian Act that relates to this particular form of landholding, so it’s nothing,” essentially, but there’s so much room for.  And I think – actually, I think I directed somebody to you recently, John.  I forget which of your books it’s in, but actually talking about the opportunity of looking at what, you know, from the outside might look like to a void, as a void.  I mean we can look to indigenous law on the issue of customary holdings in communities, and it seems that this is sort of adjacent to the example that you were just giving, Brad, and so it can really change the perspective, that there is law here and in fact we can work with it, and harness it, and have way more tools in the toolbox to be able to address situations.

Brad Regehr: Thanks for that.  We do not have a lot of time left, but I’ve got to ask you about a couple of calls to action.  So the first one I'm gonna ask you about is number 42, and this is where the call to action asks federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with Treaty and Aboriginal Rights of Aboriginal Peoples, The Constitution Act 1982, with the UN Declaration on the Rights of Indigenous Peoples.  What does that mean to you?

John Borrows: It means a lot of things, but one of the things it means is access to justice.  When people have the ability to secure institutions and resources, to answer questions that don't cost a million dollars that are in their backyard that have a check and balance function in relationship to, say, council or other authorities that are influencing their lives.  It allows for people to secure answers to their questions in ways that facilitate commercial transactions, address human rights, help us with, you know, personal injuries and contract issues.

And so, you know, this 42nd call to action is just really critical because it says that the governments commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with Aboriginal Treaty Rights, the Constitution Act, UNDRIP.  It has been endorsed by Canada, and I taught a course in tribal courts when I was at the University of Minnesota law school for five years, and it was over a thousand page case book.  And it just gave me huge confidence to see how First Nations in the United States, which are similarly situated socially to First Nations in Canada, can pick up that work and use their language, their stories, their own constitutions, their own laws, their own members to provide independent, impartial decisions that are of the highest standard, that have rigor attached to them, that allow for a transparency and an accountability that is lacking at this moment.

And so I think that there's so much in this call to action which is necessary for access to justice.

Brad Regehr: Naiomi?

Naiomi Metallic: I come from it from that perspective as well.  Like I just – some of the projects that I've been involved with, I mean I do a lot looking at inequality with respect to provision of services.  And a lot of my work is so focused on child welfare and essential welfare.  But recently I've really – another area that I will add to that is justice.  That justice services have been sort of treated, like other services to indigenous peoples, as, you know, governments fighting between themselves about which one doesn't have responsibility treating it like the perennial hot potato.

Meanwhile communities are not – you know, justice is really important in terms of decision-making and accountability and transparency, the beautiful way that John articulated it.  And, you know, that is so fundamental, security and safety in a broad sense, and being able to have control over how we interact with each other is so fundamental.  And, you know, I – yeah, so I mean that’s what it means to me, and about indigenous communities having so much of a greater role.

One of recent projects, which doesn't sound related to indigenous law that I've just been a lot of time on, is a very big report looking at Indian Act bylaws and their enforcement.  And I know I started that off with the word Indian Act, but I happened to take the view that I'm a very kind of creative practitioner, I guess.  And I think that we could actually kind of bring indigenous law into that, but there's a sort of a broader question about enforcement.

And I saw so many ways in which our laws are not being enforced, or respected, and there's just such a huge need.  I was quite happy in some of my recent research, sort of updating my report and getting it ready to go out, that there's a recent case out of Ontario involving the Pikangikum First Nation where a judge actually found that not having access to justice services in the community was a violation of Section 15.

And what's really interesting about the decision is that it enforced that with a treaty analysis about what a good treaty partners do from each other, and that the Crown – neither crown – was really living up to sort of the justice provisions in the treaty about providing for each other, and mutual assistance clauses.

Anyway, I mean that all sort of feeds into it, and I really do think that it’s really important for the wellbeing of indigenous people to be able to have functional well-resourced justice systems that serve their needs and reflect their wants.

Brad Regehr: Thank you for that.  You've already got the juices in my head starting to think about how I'm going to incorporate that into my arguments on some matters that I'm working on.

Call to action 50 calls upon the Federal government to fund the establishment of an Indigenous Law Institute, or Institutes, for the development, use, and understanding of indigenous laws and access to justice.  How do you do that?  Even blue skying here, how do each of you view that or envision that?

John Borrows: Well, you know, here at the University of Victoria, as Naiomi mentioned earlier, we have a National Indigenous Lodge, Learning Lodge, and that is to share conversations, and opportunities, and work across the country to ensure that there’s a virtual discussion which is not housed in any particular place, but roads from place to place to place as we support and work with one another.  But then also having a building here which is funded by the governments and the Law Foundation of British Columbia, which is a place to gather here in Victoria to do some of that work as a national setting.

But then see that those might also be with the Wahkohtowin Lodge as we find it at the University of Alberta, or the Tyrell – I forget the name of the lodge now, in Manitoba that the [Kweshans? 00:46:10] are part of, that we would see that indigenous peoples bring forward their own ideas about how to talk with one another, work with one another, support one another, provide resources to one another, and that requires funding.  There's capacity that's needed, there's physical buildings that are needed, and then there’s also the virtual connectivity that’s needed because really the work of indigenous law ultimately is in the communities, and these lodges, these places to gather and support one another, again, have to be transparent and look forward and out to other places.  They can’t swallow all the air in the room, as it were, and just think that all the law happens in an institution because it never does.

These institutions should be kind of like super-chargers that send out and through the work that happens as people convene and support one another in that way.

Brad Regehr: Naiomi, what’s your view on this call to action?

Naiomi Metallic: Yeah, very similarly.  I mean, we're still sort of working to, but it's a vision, and I had put in a grant that unfortunately wasn't accepted, but I thought it was a really good grant, so I'm going to keep running with it.  But it's the same sort of idea.  In Mi’gmaq the word for “structure or lodge” is “wigowam” or “wigowamo”, and “tplutaqan” is the word for “law,” and we put those two together, and they said but in the vision of it, like saying Mi’gmaq, we’re mobile.  You know, we’re around our territory, and you would bring your lodge to – your wigowam to different parts of the territory, right?

So the idea that there would be not just one central repository of places, just to the way John was, but sort of looking at – the proposal was really looking at Mi’gmaq and serving primarily the – not just Mi’gmaq, but other First Nations in the Atlantic region.  But, so, yeah, it’s this idea that it’s not housed, there’s not one place that is the authority upon that.  But there can be wigowams, tplutaqan wigowams in – maybe at the law school, but also maybe at Cape Breton University where they have a Mi’gmaq Institute there as well.  And then in communities, right, that there can be these different law lodges in different places, and that support on – that support each other.  And maybe the universities have a particular role in the training and support, but really seeing that as – to really take off and work it does have to really kind of take off in various corners, right?

So same idea, and I think it has to happen on a regional level, and there has to be regional supports for that.  But then I love this idea too of kind of having different institutes being – for lack of a better word – sisters to each other, or family, and that we are working together and supporting each other.  So I think that’s how I’d love to see that, you know, the model of indigenous law institutes.  It’s not just one, but it’s many working together to support our communities and to support our allies in working with our communities.

Brad Regehr: Naiomi, John, unfortunately we're running out of time.  We could probably talk about these issues for hours and hours, and hopefully someday we can, and in-person.  I just want to thank both of you for coming here and being so forthright, and honest, and open with your views on it.  Any last words from either of you?

John Borrows: No, I always enjoy these kinds of conversations and appreciate the work both of you are doing.  And I know that you’re representative of so much of the work that's happening across the country.  This is a movement, we are living in a time of renaissance and resurgence, and to recognise that fact, I think, gives us some intentionality about this historic moment that we find ourselves in, and what the possibilities are as a result.

Naiomi Metallic: To that I'll just say “Ditto.”  And wela'lin, thank you.  Wela’lioq, thank you both.  Yeah, it’s just been great.

Brad Regehr: Take care.

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