Thursday, November 16, 2017


By Jaime Weinman, JD 2004 / Illustration by Sandra Dionisi

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) isn’t binding on governments, but governments should act as though it is: that was one of the main arguments made by Professor John Borrows, the Canada Research Chair in Indigenous Law and the Nexen Chair in Indigenous Leadership at the University of Victoria, in his lecture “Section 35(1), UNDRIP, & Indigenous Legal Traditions.”

The address was the closing keynote of the Constitutional Law Symposium for Canada’s Sesquicentennial on October 20, 2017, part of the Asper Centre Constitutional Roundtable Series. To mark Canada150, the series focused on the development of Canada’s constitutional and human rights from the British North America Act to the Canadian Charter of Rights and Freedoms, and provided an analysis of constitutional litigation throughout Canada’s history.

The Anishinaabe/Ojibway Borrows, a member of the Chippewa of Nawash First Nation in Ontario, told the audience why he wanted to see UNDRIP used as the standard for interpreting the rights and freedoms of Indigenous people: it offered a much better standard, he maintained, than the one Canada has been using for more than 20 years.

That standard, whose inadequacy was a repeated theme in Borrows’ lecture, was set down by the Supreme Court of Canada in the 1996 case R v Van der Peet. Asked to interpret s. 35(1) of the Constitution Act, which recognizes "the existing aboriginal and treaty rights of the aboriginal peoples of Canada," the Court held that a practice or custom is not an Aboriginal right unless it existed before contact was made with European peoples. Borrows dismissed this formulation as “a fiction” that “prevents Aboriginal peoples from governing in a contemporary context” by excluding any customs that developed closer to the present day.

 [The UNDRIP ] offered a much better standard, he maintained, than the one Canada has been using for more than 20 years.

The way to fix this, Borrows argued, was “go beyond what the courts will do,” and use UNDRIP as a guide for the interpretation of s. 35(1). UNDRIP says that rights are inherently “vested in peoples,” and makes no apparent distinction between rights that developed before and after contact. Borrows wanted to see this framework, rather than the Supreme Court’s narrower definition of rights, used for by the federal government in its actions and court submissions. Officials have given lip service to this idea without acting on it: last year, Canada’s Minister of Indigenous and Northern Affairs announced  there were plans to incorporate UNDRIP as part of a larger “box of rights.” Not to follow through on this promise, Borrows argued, would violate the Crown’s well-established duty to treat Indigenous peoples honourably.

But it wasn’t just the Crown that needed to change its thinking. Borrows also wanted to see UNDRIP, which he called “broadly an Indigenous instrument,” applied within First Nations communities themselves. As an example, he suggested that nations could implement s. 18 of UNDRIP, which holds that Indigenous peoples have the right to set up their own decision-making institutions and representatives to protect their rights; Borrows said that these principles “would positively and radically challenge the calibration of Indigenous governments,” by ensuring “that our own people are also empowered by and protected from our own governments.”  

Towards the end of his talk, Borrows did something unexpected but effective: he delivered a long anecdote that seemed, at first, unrelated to what had gone before. He recounted the story of a fisherman in his community who tried to rescue a bear that had fallen into the water after it got its head stuck in a plastic bucket. The point of telling the story was to encourage the audience to interpret it in terms of Borrows’ talk, and to get a better sense of how things observed in the natural world can impact the interpretation of law: "The methodology of Indigenous law is to read the Earth,” Borrows said. Members of the audience seemed to understand what he was getting at: during the question period, an audience member and Borrows discussed what the story had to say about the urgency of change in legal interpretation and the slow speed at which these changes take place. It was not surprising when after the talk, Cheryl Milne, the executive director of the David Asper Centre for Constitutional Rights, who had introduced Borrows, thanked him for the story and for providing “an eye-opening look at law.”

Borrows’ own personal interpretation of the bear story was that it was “the story of what we’re involved in right now, in our struggle to live together better with one another as Indigenous peoples and others in this place,” as well as the struggle to create “a revitalization of both Indigenous law and Canadian law.” Creating that combined revitalization was part of the purpose of advocating a new interpretation of s. 35(1): a more UNDRIP-influenced reading might create more real equality.

“Colonialism is federal and provincial governments always getting the last word without the participation of Indigenous peoples,” he said. “To the extent that s. 35(1) can go down the path of preventing unilateralism, I think there's a lot we can do there.”

See also the Asper Centre blog posts describing the discussions at the Symposium's panels:

Watch the video below:

Shortly after this symposium, the federal government announced it will support the private member's bill demanding the full implementation of the UNDRIP.