Vol. 13 No. 7 (July 2003)

RECOVERING CANADA: THE RESURGENCE OF INDIGENOUS LAW, by John Borrows.  Toronto: University of Toronto Press, 2002.  312 pp.  Cloth $42.00. ISBN: 0-8020-3679-1. Paper $29.95. ISBN: 0-8020-8501-6.

Reviewed by John D. Whyte, Department of Political Science and Saskatchewan Institute of Public Policy, University of Regina. E-mail: john.whyte@uregina.ca.

This book’s six chapters are drawn from ten previously published law review articles and book chapters, yet they present a unified treatise the chief tenet of which is that the Canadian Aboriginal peoples belong to distinct normative communities that are entitled to recognition and accommodation within Canadian statecraft. This claim for inclusion is not drawn from the imperatives of social development – or the avoidance of undoubtedly seriously harmful social conditions. Neither is it drawn from an abstract commitment to legal pluralism, or rejection of the ill-fitting legalist concepts of regime, commonality and hierarchy. Both sets of claims could be seen as perfectly compelling within the current Canadian social and political context, but, for Borrows, they lack the desirable normative specificity to be drawn from the historic narrative of relations between European settlers and indigenous peoples.

Borrows likewise avoids two other standard claims for increased recognition of political capacity for Aboriginal communities. The first is the now well-established understanding of the connection between self-determination and social development, and the other is the specific constitutional commitment made to some of Canada’s historical communities to recognize sufficient political authority to preserve cultural continuity and cultural integrity. In Borrows’ argument the first defect of these bases for implementing greater Aboriginal self-determination is that they fail to give due regard to the long historical record of Aboriginal government and the array of culturally entrenched indigenous instruments of principle-based ordering. The second defect is more damaging; justifications that, in the first place, are only instrumental and, in the second place, are derived from imperial commitments (notwithstanding their reflection now in the nation’s constitution) inevitably pay insufficient regard to the mutuality of the promises and arrangements constructed by imperial powers and indigenous populations. The sad result of this implicit denial of history is lessening the weight of inter-societal respect and inter-societal sharing in the operation of the Canadian state.

For Borrows, the heart of an appropriate relationship between Canadian jurisdictions and Aboriginal peoples is the giving up of something of value by each of the two political cultures and the expectation of each culture that something of value would be obtained. Since the giving up was meant to go on forever – an eternal loss of autonomy, land and immunity from interference, on the one hand, and full dominion, untrammeled citizen conscription and political assimilation on the other hand – so also must the mutual conferral of benefit. The short-term goals of peace, military alliances and space for settlement were meant to be replaced by the co-existence of two cultures that would continue to accommodate competing interests and continue to learn from each other’s ways.

This sense of an on-going dynamic of sharing across distinct cultures, based on both an undoubted capacity of Aboriginal societies to self regulate and a shifting understanding of citizenship, has been too much for some Canadian political theorists. They have worried about the primacy of group rights and the resultant deterioration of individual autonomy, and about the weakening of the Canadian state if the idea of interdependence is not underscored at every turn, and about the loss of civic peace if Aboriginal people and their communities seek validation and vindication only within their own local communities. Perhaps more significant has been concern over the disruptive consequences for established economic interests (especially economic interests based on land and resource rents) and for existing political authority of taking seriously the treaty relationship paradigm—the idea of inter-societal co-existence based on sustained distinct political cultures and capacities.

Borrows does not shrink from the implications of the historicist approach that guaranteeing societal integrity through respect for autonomy is what was at the heart of European settlement. Nor does he shrink from the implications of his claim that indigenous societies enjoyed, and reflected, every idea of modern statecraft – democracy, rule of law, federalism and the protection of minorities. He seeks re-recognition of the historical economic base of Aboriginal communities and recognition of the political authority that aboriginal communities truly need to recover capacity and re-establish self-respect. And, he honestly characterizes these developments as both disruptive and interest destroying.

This book is not, however, a tract for revolution. On the contrary, he offers his prescriptions for Aboriginal political development as both a matter of deep constitutional continuity and as reflecting a vision of the Canadian political community that is enriching and enabling for all. The former project is performed more convincingly and, in this, he is much helped by a line of cases from the Supreme Court of Canada over the past twenty years that has been astoundingly conceptual and high-minded. It is as if the practices of justification in constitutional cases had been drawn from the writings of Isaiah Berlin –construction of rules for the operation of the state drawn from the most general (and constitutionally unarticulated) values. The cases he uses are not only those that have given significant operational effect to Aboriginal rights, but those relating to the rights of minority language communities, the independence of the judiciary and the essential conditions for preserving national unity. Borrows reads and uses these cases well and, indeed, they do stand for his basic proposition that a nation whose actions accord with deep inferable principles, will, in the long run, be stronger and more stable than one that proceeds only according to naked text or, worse, expedience. In the context of determining the constitutional entitlements of Aboriginal peoples, this means throwing out all of the hollow legal doctrines for dispossessing indigenous interests that have marked a century of colonialist minded jurisprudence and replacing them with the basic constitutional idea of honoring political commitments and preserving political communities under conditions of parity and respect. Neither Borrows, nor the Supreme Court of Canada, are wrong to read our constitutional history with this noble bias. After all, the common law of the constitution, like the common law in general, should give preference to the better side of our legal history.

As for the vision of Canada as a polity in which different loyalties can surface and retreat, and where multiple political authorities can best validate the ideas of citizenship and belonging, Borrows offers little detailed explanation about how this works out best for everyone. Naturally, he offers the standard justification that in states where no group feels oppressed or excluded, state stability is most likely to be experienced. This, of course, is not necessarily true, especially if special political authority is extended to communities in circumstances the basis for which most people cannot understand. This looks and feels like favoritism, not fidelity to compact or constitution, and it undermines political stability. Borrows’ answer to this is that, if settlement history were to be learned more broadly, the normative case for special political authority would be clearly understood.

The epistemological centre of Borrows’ book is the normative force of stories. His book draws constantly on two types of narrative. One type consists of stories of his own family and community, of relationships that have been formed and commitments made. The other is legend involving the supernatural (or, in truth, the all too natural) personae of the beginning of things. They are told to pass on wisdom about how we should live together, and they are tales of wisdom and virtue. His purpose in relating every jurisprudential and political point he wishes to make to the stories of his own community is, first, to make the case for cultural distinctiveness. All cultures have normative structure and narrative is its most common expression, but the precise form for capturing order through the memory and hope of stories is always distinctive. The stories of America’s indigenous people carry a highly distinctive mark in their inclusiveness of all of creation and in the completeness of the wisdom that is located in relationships within nature. This is not just a superficial characteristic exploited to make the case of difference and, hence, the case for power. It expresses a different relationship to such core phenomena as intellectuality as opposed to cunning, to inevitability as opposed to the manipulation of events, and to place as opposed to mobility. The stories tell us that there is a necessary case for political space in the cause of maintaining cultural integrity.

The second purpose of the stories is that they tell us that when it comes to social ordering, no claim of superiority can be made on behalf of European politics. The narratives reveal subtlety and nuance. The case for colonial suppression of Aboriginal culture cannot be based on the need to overcome primitivism. Borrows’ book is frequently angry about what has been stripped from the indigenous population – land, authority, language, culture, livelihood, dignity, and so forth. But he is most angry over the rejection of the jurisgenerative capacity within Aboriginal communities by those who have refused to understand the force of Aboriginal narratives and who have not cared to look at the long record of social ordering.

This is a forceful and charismatic book; it is marked by brilliant exposition, a clear vision and hope.

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Copyright 2003 by the author, John D. Whyte.