Indigenous law gained power in 40 years since charter adopted, lecturer says

Indigenous peoples in Canada are seeing a resurgence of traditional laws 40 years after treaty rights were recognized alongside the Charter of Rights and Freedoms.

John Borrows, the Canada Research Chair in Indigenous Law at the University of Victoria Law School, is delivering a lecture for St. Thomas University on Thursday night on the increased recognition of First Nations, Inuit and Métis laws in Canada's justice system.

As part of the Lodhi Memorial Lecture in Human Rights, Borrows plans to speak virtually on how the recognition of treaty rights made the right to self-govern part of the highest level of the justice system. 

"Over the past 40 years, there's been many, many cases that started to outline what it means to recognize and affirm an Aboriginal treaty right in the highest laws of our land," Borrows told Information Morning Fredericton.

Borrows, a member of the Chippewa of the Nawash First Nation in Ontario, said he's been studying this issue for the last 30 years, and he's seen " a lot of positive changes."

In Quebec, an Indigenous child welfare law that affirms "the inherent right of self-government, which includes jurisdiction in relation to child and family services," received royal assent in 2019. Parts of it were declared unconstitutional by a Court of Appeal judge, but Ottawa stands by it.

"This harmonization process is really reconciliation in action," he said. 

"It shows that it's not a threat, but that these things can actually be strengthening one another," Borrows said. "There can be a reciprocity as Indigenous law grows and has given place and recognition."

In New Brunswick, Wolastoqey Nations have launched an historic title claim. The Wolastoqey want federal and provincial governments as well as industry to conduct meaningful consultations with the nations.

"Ultimately, what [these cases] do is they open up space for negotiation, so there's a more efficient and fair sharing of what those resources, lands, are and how people are," Borrows said.

Borrows said First Nations, Inuit and Métis have stepped forward to find a way to articulate their view so that it's "accessible and understandable" to the Crown.

Laws went unrecognized after settlement

Borrows said Indigenous peoples had laws and rules way before settler Europeans landed on the continent.

He said the laws ruled everything from resolving disputed to raising children.

However, when settlers came to Canada and saw no parliaments and courts they disregarded the laws that already existed.

"The laws were pushed aside," he said.

And that continued until the Indian Act was written, which Borrows said was "designed to marginalize Indigenous people."

"We can find ways to be better as Canadians and one of those ways is to understand our highest laws," he said.