What Does Decolonization Really Mean?
Reflecting on my conversation with one of the leading authorities on Canadian Indigenous Law, John Borrows.
Meet John Borrows, one of my intellectual heroes! John Borrows is a Canadian academic, jurist, and a full professor at the University of Victoria where he hold the Canada Research Chair in Indigenous law. He is known as a leading authority on Canadian Indigenous Law and constitutional law and has been cited by the Supreme Court of Canada. I first learned about John Borrows when I was trying to decide what law school I was going to apply for. The choices were between Peter A. Allard School of Law at the University of British Columbia or the University of Victoria.
The appealing aspect of UVIC was the new JD/JID program. This program intertwined Indigenous legal traditions and western legal traditions. The program was longer but you were immersed in Indigenous Law, and one of the pioneers of this program was John. The program was the first globally. It was a huge step in the right direction in my opinion. Why? First, because the students in that program will have a greater appreciation for Indigenous Law as a consequence of learning about its wisdom and elegance. Second, our legal system is imperfect, and the insights Indigenous law can provide can help address those issues. Finally, I agree with John Borrows when he comments that doing so could strengthen our countries social fabric.
That said, Allard Law School was closer to my home, to my community, and to my loved ones. As well, it had a really strong reputation for business. Although I was personally excited about the idea of learning about Indigenous law, I wanted to make sure I understood (to a certain extent) business, finance and tax. Why? Because these are the areas of knowledge I felt like my community needed. Capitalism, and business generate wealth, wealth helps rise people out of poverty and generates new opportunities. So, Allard won my heart and life went on.
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John Borrows came up again in my Jurisprudence & Critical Perspectives class, taught by Julen Etxabe. He gave us articles to read by John, focused on how Indigenous Law could be utilized to improve our legal system, and to strengthen our social fabric. The articles were brilliant! His writing style was very easy to understand, he provided a well balanced perspective and brought forth examples that blew my mind, and inspired me.
When nation states can learn from and embrace the best traditions of its peoples, they can be strengthened and become more unified. If this process occurs in a fair, orderly, transparent, non-discriminatory yet authoritative way the rule of law is reinforced in the process. The blending and/or coexistence of legal traditions is possible. 1
John is incredibly insightful, and brings a lot of nuance to complex, often over-simplified issues. In John’s writing, he did not argue that Indigenous legal traditions should be embraced because of Canada’s dark past. Instead, he argues that bringing together different legal systems will unite, strengthen communities, and reinforce the rule of law. While some may argue that the first argument is fair, it is not as persuasive and is far less inspiring.
I’ve sat down with many Indigenous and non-Indigenous people through the podcast and throughout school. It is clear to me that reconciliation is a major topic of conversation for Canadians. But we have to start setting the table (do you mean to say “setting an example?”) in a healthier way. I have spoken with individuals from many different walks of life, who are terrified to offend me. So much so, that they are afraid to ask honest questions. We need to find the sweet spot where people know about the issues, are interested in what they can do - but are not afraid to ask the tough questions.
This is where I think John Borrows excels. This is why I think we need to elevate his voice. He does not believe we should judge people based on the colour of their skin, even if they’re white. He knows that not all Indigenous people believe that this is all stolen land. He highlights this in a chapter he authored. In the chapter he explains that within the Treaty 6 territory, members believe the treaty they signed is sacred law. According to Borrows, their perspective was that treaties were made with the Crown and the Creator. That is all to say, that not all First Nation communities view the land as “stolen”. In that Chapter, Borrows highlights words by Elder Norman Sunchild of Treaty 6”:
‘When [Treaty 6 First Nations] finally agreed to the treaty, the Commissioner took the promises in his hand and raised them to the skies, placed the treaties in the hands of the Great Spirit.’19 Elder Jacob Bill also of Treaty 6 commented: ‘It was the will of the Creator that the White man would come to live with us, among us, to share our lives together with him, and also both of us collectively to benefit from the bounty of Mother Earth for all time to come.’ He further said: ‘Just like the treaty, that’s what that is, one law was given, Indian and white, we both gave something special, something to keep, something to reverence, just like the treaty, both Indian and white beneficiaries, we were given a gift from the Creator. The Creator owns us, he is still the boss, nothing is hidden … just like that little flicker [of fire], that little flame’s going out, that’s the way the treaty looks, but now that we are sitting here it seems like we need a big flame so we can revive our lives and our relationship, just like we’re trying to revive this life so that our young people will have a good life for a long time, for many generations to come. That’s why we are here, that’s what the Elders seen a long time ago, if the white man listens he too will benefit, a long life for his children and his future generations because he, too, won’t sin [pastahowin], he will not feel the brunt of that whip that the Creator has. Nothing will be hurt if both sides start talking to each other as beneficiaries of the treaty.’ 2
Now, John would be the first to say that communities from Treaty 6 will have a completely different perspective than other communities. There are absolutely Indigenous people in Canada who view the land as stolen and in many cases it was. One example from British Columbia is Joseph Trutch. When the land was being settled, First Nation communities were promised land for their reserves, and when Trutch took power he downsized that up to 90% in some cases. He was known to be corrupt, selfish and made many racist statements about Indigenous people. The overlying point though is that different Indigenous communities have different perspectives on Canada’s legitimacy. The topic, is unsettled (to learn more about Joseph Trutch, check out Grace Kennedy’s great article on him called "The man who stole a valley”).
Yet, in many land acknowledgements we talk in absolutes and we talk broadly. When we talk in absolutes it makes it difficult for people to learn. Behind the scenes, people are afraid to ask me “What is the appropriate terminology”, “Am I allowed to go onto reserves”, “Why are Indigenous communities more impoverished”, “Are the crime rates on-reserve typically higher”, and “what can I do to participate in reconciliation?”. Almost all of these question I’ve been asked in a whisper voice, because people are afraid to ask. I think people like John create the space for people to ask honest and tough questions, that can actually result in learning and greater understanding.
I believe we need this, not only because self-censorship is a bad thing but because there is so much to learn! For example, when I was growing up I always thought cultures predicated on the written word were more effective than oral traditions. That is, until I attended law school and learned more. Oral traditions actually allow for more integration of the information. Big words, I know. But look at it this way, how many know what Shakespeare meant? How many people know the meaning of his writings? What was the point of his stories? Not very many, all my peers roll their eyes when Shakespeare is brought up. It is tough to fully integrate the narratives into your life.
Shakespeare, like many brilliant writers has incredible insights - but it takes work to understand what he was saying. Aristotle, Friedrich Nietzsche, Fyodor Dostoevsky, Socrates, Marcus Aurelius and other brilliant philosophers have lots to say but it takes time, reading and patience to understand them in their context. For example, say you read some Nietzsche. It is insufficient to just read him, you need to learn about the time in which he lived, and the challenges he was facing - in order to fully understand his viewpoints and insights.
The same, in my opinion goes for the bible. You need to understand the bible not as a book by one author but as a library. That is what bible means in greek, little books. It is also best not to try to understand the book as a literal text of historical events. History with the internet is a very different thing than history passed on generation to generation. Although some argue that the bible is a historical text, it is far more fruitful to try to gain insights from the text as a guide on how to live a meaningful life.
A quick example of this is Cain and Abel. At first you might say, you are Abel and your neighbour is Cain. You make good sacrifices to the future, go to university, and work hard. Where your neighbour makes bad sacrifices. They gamble on weekends, drink too much, and slack at work. The brilliance of the story is that you can also see yourself as both Cain and Abel. At times, you are a good person seeking to do right by the community. Other times, when you get cut off in traffic - maybe you’re a bit more Cain. At first glance, you could miss the insights of the story because you don’t see yourself in the characters, or you don’t see the psychological depths of the story. That is the challenge with written traditions, they take a fair bit of work to integrate.
In contrast, oral traditions are constantly modified and updated depending on the recipient of the story. One example that I love personally, is the story of the generous man and the red cedar tree. I will let Jeanette Ageson, a publisher with the Tyee tell the story, as it is far more vivid in her writing than in mine:
Coast Salish Oral History tells that before there was red cedar, there was a generous man. Whenever his people were in need, the man gave food and clothing. Recognizing the man’s good work, the Creator declared that when he died, a red cedar would grow where he was buried and continue to provide for the people. Red cedar did just that, co-evolving with First Nations and helping them build sophisticated societies of unparalleled wealth, abundance and ingenuity.3
That story makes sense. Be good, have an open heart and good things will happen. It doesn’t protect you from death, but your legacy will live on. Imagine you are a good mother or father, and you instil the best values you can into your children. Your values, your beliefs, and your positive mindset live on through your children, grandchildren and so on. You could be like the generous man, and if you were then your work, your generosity will be passed on overtime, which is a beautiful idea that seems plausible. John makes this comment about the brilliance of oral traditions in his chapter:
For many Indigenous people, the oral transmission of law is an important protection against narrowing influences because it allows for a stronger weaving of the past and the present. The spoken word is given pride of place because the transmission of law in orally-based legal systems is bound up with face-to-face persuasion, reason, the configuration of language, political structures, kinship, clan, economic systems, social relations, intellectual methodologies, morality, ideology, and the physical world. These factors assist powerful individuals and groups in knitting legal memories more tightly in their adherents’ minds, keeping the laws living in places other than dusty old books full of overly technical rules. Rather than by being hoarded by a professionalized legal elite, laws can be transmitted through memorized speech, historical gossip, personal reminiscences, formalized group accounts, representations of origins and genesis, genealogies, epics, tales, proverbs, and sayings. 4
It was a true milestone for me to interview John Borrows. There are certain individuals I’d love to interview, but they are no longer with us. My grandmother Dorothy Kennett, Fyodor Dostoevsky, Marc Andre Leclerc, and Richard Wagamese to name a few. If you asked me in law school if I’d ever have the privilege of speaking one-on-one with John Borrows, I’d probably laugh. As I said, he is one of my intellectual heroes. He put to words things I felt, but didn’t know how to say. He gives steal mans positions and works to take the reader on a journey of understanding.
To meet John, we travelled out to Victoria, and he was gracious enough to allow us to record the interview in his stunning home. We sat out in the serene backyard, and talked about Indigenous law, narratives, the Queen’s passing, National Truth & Reconciliation Day and John’s personal background. He was incredibly hospitable, and provided an amazing tour of his art collection.
I hope you are able to take the time to tune into this interview. This one is a lot shorter, but jam-packed with information, knowledge, wisdom and sage advice. As always you can listen on Apple Podcasts, Spotify, Google Podcasts and YouTube. Don’t forget to subscribe to this newsletter, rate the podcast on your preferred platform and to tell a friend!