Book Review: John Borrows, Recovering Canada (UTP, 2002)
|Book: Recovering Canada: The Resurgence of Indigenous Law|
ZNet Book Page
Publisher: University of Toronto Press
John Borrows’ book Recovering Canada (2002) argues for a “harmonization” of indigenous and Canadian legal systems and interests “through a process of reconciliation that respects both Crown and Aboriginal legal orders” (p. 8). One of the central theses of the book is that Aboriginal rights are unique, deriving from indigenous peoples’ prior occupation of the land, and that Canadian courts have sometimes recognized this uniqueness through the doctrine of sui generis (Latin for “”of its own particular kind”) (p. 9). Borrows insists that this Aboriginal difference is crucial, and is expressed in part through different ways of understanding, interpreting, and creating law, but at the same time, he takes pains to show how Aboriginal law “fulfils many of the same functions as common law precedent” (p. 14). The reconciliation that Borrows advocates “would make the law more truly Canadian and, as a result, more equitable and fair” (p. 22), though he recognizes that there are serious obstacles and prejudices standing in its way (p. 24), and the “acquisition of Aboriginal law” would require as much, “if not greater, an investment of time … to learn and apply [as] Canadian law” (p. 25).
For Borrows, indigenous law is “expressed through the teachings and behaviour of knowledgeable and respected individuals and elders,” and articulated through “rich stories, ceremonies, and traditions” (p. 13). Borrows states that stories “express the law … [and] represent the accumulated wisdom and experience of First Nations conflict resolution” (p. 13). Unlike those who criticize oral history for its allegedly “changing” nature and for the “fallibility” of memory, Borrows argues that the “constant recreation” of Aboriginal law “to meet contemporary needs is a strength” (p. 14-15).
In his discussion of how Aboriginal law has historically, and still could deal with complex political and ethical questions, such as resource governance, as well as “criminal” transgressions and sentencing, Borrows repeatedly weaves into his narrative examples from traditional Anishinabek oral story-telling. He shows how these stories operate on multiple levels, and the same story can be referenced to “find law” pertaining to disparate issues. Most importantly, he shows how a single story cannot be understood in isolation; in fact, to know what “law” or moral is conveyed by one story, one must simultaneously know and be able to reference one or more other related stories. Like the common law, Borrows argues that Aboriginal laws can only be understood in reference to a larger web of inter-connected stories that collectively define the law, and serve as a body of precedents. Borrows argues that the versatility and wisdom contained in Aboriginal law could be of benefit beyond the Aboriginal community, and incorporated into Canadian federal law, “expand[ing] the stock of precedents” that could be drawn upon in Canadian and U.S. courts, and in the process, “enrich[ing] our democracies (p. 53-54).
Borrows does an excellent job of demonstrating the double-edged sword that First Nations face in Canadian courts. To even ask the court to rule on the nature or parameters of Aboriginal rights (whether it is a resource or hunting right guaranteed by treaty, or a broader right to territory and self-government) is to concede jurisdiction in advance, and risk a ruling that can take away with one hand as much as it “grants” with the other. Borrows’ treatment of the mixed blessings of salient court decisions in Chapter 3 shows that court decisions are often warped by the “limited cultural understanding” of judges, and shows how Aboriginal rights – unlike other Canadians’ rights – have been significantly and unfairly “frozen” in the past (p. 64). Borrows also deftly demolishes the courts’ a priori assertions of Canadian sovereignty, particularly in his chapter on British Columbia, where few treaties were signed. He rightly scoffs that “mere assertion [of sovereignty] by one nation” is said to define and restrict the land rights of the original owners (p. 94). He asks questions that few (Canadianist) historians seem to worry about:
How can lands possessed by Aboriginal peoples for centuries be undermined by another nation’s assertion of sovereignty? What alchemy transmutes the base of Aboriginal possession into the golden bedrock of Crown title? (p. 94)
Borrows goes on to state: “That a legal entitlement to land could be secured over another entitlement merely through raw assertion makes no sense” (p. 95-96). Time and again, Borrows highlights the legal (and ethical) absurdity of such imperial pretense, but seems genuinely surprised that such absurdities continue to frame historical writing, political discourse, and legal judgments in Canada – as if Canada is not a product of settler-colonialism in the first place.
Overall, Borrows constructs an eloquent and hopeful narrative that begins from the premise that both natives and newcomers are here to stay, historically intertwined, and the colonized should not (indeed cannot) be subordinated or assimilated into settler society. In his view, settler society would be enriched if it came to grips with Aboriginal “difference,” incorporated this difference into national political and legal structures, and protected and honoured Aboriginal peoples as foundational (in a sense, the way English and French language, culture, and history are protected and honoured in national discourse, politics, and law). In one sense, Borrows’ prescription for Aboriginal peoples’ ills, and the legacy of colonialism, is not “revolutionary.” He neither advocates indigenous secession and sovereignty for specific peoples over specific territories (the way Bonita Lawrence hints at in the conclusion of her book “Real” Indians and Others), nor does he advocate the expulsion of Europeans and other non-Natives as implied by some “de-colonization” movements in other countries and contexts. At the same time, however, Borrows’ takes pains to counter charges that he is advocating “assimilation” (p. 146). In some senses, his “reconciliation” vision has revolutionary implications, from the standpoint of indigenous peoples’ place, power, dignity and revitalization from within a settler-colonial state. While there are substantial differences in emphasis and politics, the book warrants comparison to Alan Cairns’ work Citizens Plus, in the sense that both works try to strike a balance between asserting Aboriginal “difference” and rights on the basis of prior occupancy, as well as demanding a seemingly contradictory “equality” of citizenship within some kind of reformed Canadian polity.
At the end of Recovering Canada one is left wondering how to get from here to there, because Borrows does not really address strategies for achieving his vision. He notes that Aboriginal people have often been forced to adopt “blunt instruments” such as direct action, demonstrations, blockades, and litigation to make their point, or press their demands (p. 43). Borrows neither criticizes nor advocates such approaches, and in the absence of a treatment of strategy, one is left with the notion that non-Natives must simply be “educated,” come to grips with their colonial history, and eventually accept in their hearts a vision of reconciliation like that offered by Borrows. Perhaps, in Borrows’ narrative, it is judges and politicians that need to accept this vision and spearhead an evolution (through top-down reforms) towards a more inclusive society. Despite these lingering questions, Borrows breaks new ground by articulating a new inclusive vision that is both reformist and anti-colonial, forward-looking and drawn from Aboriginal traditions. It is a welcome foray into unknown territory – namely, what a Canada based on native and newcomer history, wisdom, and law might look like. Likewise, the book may be stimulating and challenging for anyone advocating some form of “de-colonization” for Canada. Despite the radically different contexts and methodologies, there are also some interesting parallels between Borrows’ work on indigenous struggles in Canada and Ali Abunimah’s discussion of Palestinian self-determination in his book One Country.