Canada’s first joint program in Indigenous law and common law is preparing to launch next September at the University of Victoria, with an ambitious aim of developing a third legal order in Canada, while also producing lawyers for industry, government, First Nations and international work.

The approach is modelled on the “McGill program,” a joint program in the country’s two other legal orders – the common law and Quebec’s Civil Code – at McGill University in Montreal.

The brainchild of John Borrows and Val Napoleon, two University of Victoria law professors of Indigenous background, the program has been in development for more than a decade, as researchers from that school and others studied and recorded the customs, oral traditions and legal principles of Indigenous communities.

Prof. Borrows, an Anishinabe/Ojibway whose home community is the Chippewa of the Nawash First Nation in Ontario, said Indigenous law is at the beginning of a new era in Canada.

“In some ways it’s very strongly developed,” Prof. Borrows, who holds the Canada Research Chair in Indigenous law, told The Globe and Mail. “The principles they come from are centuries if not millennia old. There’s quite a wealth of principles, ideas, processes, that have a huge long heritage attached to them. But then in bringing them into contemporary settings through courts or legislation or regulation, we’re really at the dawn of their development in many respects.”

The school views the program as a major step forward for reconciliation, by helping to ground Indigenous self-governance in aboriginal legal principles.

“The most important contribution to reconciliation is to give service to Indigenous people in their work of rebuilding and restoration of their jurisdictions, and their ability to have a material influence over their lives,” Jeremy Webber, dean of the law school, said in an interview.

The scope of research for the program has been wide: “lands, water and resources, harms and conflicts, constitution building, child protection, citizenship and matrimonial property on reserves,” according to a school brochure.

“Indigenous law is not just a vision of harmony,” Dean Webber said. “It’s a practical tool for doing the work of law within any human community.”

The brochure does not spell out in detail how Indigenous law would be applied, except to say its students will attain the skills to practice in the Canadian common law, in Indigenous legal orders and where the common law and Indigenous laws meet. It also does not give concrete detail of what Indigenous law is, though it does quote Prof. Borrows as saying: “Indigenous people look to the land to find the principles for judgment, whereas the common law looks to old cases in libraries.” Whether Indigenous law would be akin to municipal bylaws, or would regularly blend with areas covered by federal and provincial jurisdiction, remains uncertain.

Indigenous law is poorly understood in Canada, Senator Murray Sinclair says.

“Most of the folks back in the days when I was in grade school taught that Indigenous people had no laws,” said Sen. Sinclair, who chaired Canada’s Truth and Reconciliation Commission, which probed the residential schools at which First Nations children faced forced assimilation. “I think this particular scholarly development will open up everyone’s eyes.”

Contrary to a popular misconception, Indigenous people do have property laws, he added. “There are some very strict laws about not touching property that belonged to another man. You couldn’t touch another warrior’s weapons. You couldn’t take food that someone else had killed without permission. Permission was freely granted, and that’s another cultural value respected in most tribes. That is, that you have to be prepared to share with those in the community who have need.”

Up to 25 students are expected to begin in September, pending approval of the program by B.C.’s Ministry of Advanced Education, Skills and Training. Tuition and fees will be just under $11,000 a year, the same as at the school’s common-law program. The first-year curriculum includes courses in constitutional, criminal and property law. In their third and fourth years, students will spend a full term in Indigenous communities, studying a particular legal order and working on law-related projects.

The program became possible when British Columbia’s NDP government set aside money in its budget last month. Operating costs for the first-year class will be $450,000, and when the four-year program (one year longer than the law school’s common-law degree program) is fully up and running, the cost will be $1.8-million. Capital costs for a building to house the program are estimated at $18-million. The school is looking to Ottawa for that capital funding, but the money was not in last month’s federal budget.

The University of Victoria has extensive experience with aboriginal students and Indigenous law. The university ran a law school, Akitsiraq, in Iqaluit from 2001 to 2005, and the curriculum reflected Inuit law. More than 200 Indigenous students have graduated from UVic law, including 20 per cent of the school’s master’s and PhD students. It also has the country’s only Indigenous law research unit. Dr. Borrows has been involved in Indigenous law programs in Ontario at Osgoode Hall, Windsor, University of Toronto and Western, as well as McGill.

Sen. Sinclair said the UVic program will spark the development of an “Indigenous common law.”

“When you look at the history of the common law of England, the king would appoint the judges but the judges would apply the law of the community,” he told The Globe and Mail. “Then judges got together to see if they could get all the communities to agree on what they had in common, the laws they had in common, and see if they could start applying those. And that’s how the common law arose.”

Dean Webber describes the program as the world’s first to combine Indigenous law and common law. The closest parallels, he says, are in Africa, New Zealand and Australia, where Indigenous peoples’ customary law (community standards of conduct accepted as laws) is taught. In Africa, customary law is part of mainstream law, he said.

Prof. Borrows says McGill graduates have fanned out around the world, working in areas where understanding of more than one legal system is helpful. He said he expects similar opportunities for the graduates of the UVic program, in a world with 800 million Indigenous people.

Indigenous law would not replace the federal criminal law, but its principles of restorative justice could be used in sentencing. It could also spur the development of First Nations courts, Prof. Borrows said. (The U.S. has many such courts.)

Prof. Borrows calls the program “a learning exercise, not an ideologically driven exercise,” adding that it will produce lawyers with a deeper understanding of the common law.

“There’s that statement that a fish doesn’t know about water until the first time it jumps into the air. Being in the common law without having a contrasting experience might make you think that everything in the common law is just natural and neutral and just the way of the world.”

‘It just kind of floored me’: Students, professors excited for launch of Indigenous law program

Curtis Lefthand decided he wanted to study law four years ago. Since then, he’s had his eye on one dream program – the University of Victoria’s.

The faculty’s research into Indigenous governance and legal systems appealed to the University of Calgary student, who is Niitsítapi, from the Blackfoot Nation. The joint degree in Indigenous and Canadian law has given the program an additional shine for Mr. Lefthand. He has long been reflecting on how to apply his spiritual ways of understanding traditional Niitsítapi laws to the Canadian common law system under which his people also live.

“It just kind of floored me,” Mr. Lefthand said. “It gave me hope that there’s opportunity for Indigenous people who wish to study in law school to practise and share our traditional worldviews.”

The four-year graduate program, awaiting approval under British Columbia’s Degree Authorization Act, will offer courses that teach common law principles alongside the traditional laws of specific First Nations. Students will learn Canadian property law alongside Gitxsan property law, for example.

“People can work with legal practices different from their own and appreciate it,” said Rebecca Johnson, associate director of the school’s Indigenous Law Research Unit. “Any just society is made more just by real engagement with other forms of law.”

Other courses include field school, where students learn alongside elders for a term. Ms. Johnson is developing an Inuit legal theory course that uses films such as Zacharias Kunuk’s Atanarjuat: The Fast Runner to interpret Inuit law stories in the context of the North.

“The big hope is that over the next 20 years, this will be a program that will be run at every law school in Canada,” Ms. Johnson said.

The announcement of UVic’s program comes as potential reforms to Canada’s judicial system are being discussed across the country, after high-profile cases involving the deaths of Indigenous people. Ms. Johnson pointed to the trial of Gerald Stanley, who was acquitted in the death of Colten Boushie, as one example where incorporating Indigenous law could offer different forms of healing and justice for grieving families and for the accused.

“In [traditional] Cree law, there are different approaches to how you deal with people who kill,” Ms. Johnson said. Cree principles include steps to address the consequences when someone in the community is killed, with more nuance than just a guilty or not-guilty verdict. “What has to be done to address the fact of the death – that goes beyond putting him in jail.”

Ms. Johnson said the law school has been receiving calls from excited prospective students and their families, who have been waiting a long time for the opportunity to empower young Indigenous people to simultaneously practise Canadian and traditional law.

And she thinks the flexible and open-minded approach to legal challenges will equip graduates with a perspective that sets them apart from other lawyers in the country.

“People who now understand how to start to learn about another legal order will be a huge asset to law firms, a huge asset to courts, a huge asset to society in general,” she said.

Mr. Lefthand is finishing his last year of studies in political science and Indigenous governance at the University of Calgary. He has applied to UVic’s joint program and looks forward to potentially graduating in four years with a one-of-a-kind law degree under his belt.

“I don’t want to jump the gun on myself, [but] given I do well and given I make it through, I can be a tool for my own community,” he said. “I want to be a small mechanism to say, ‘Well, our laws are just as important as common law.’

“I can be there to help interpret in my way, and my people’s way, what is being said to them – but also where we can find common ground.”

Justice Reporter
The Globe and Mail, March 21, 2018