Photo by Derek Sutton from Unsplash
Life and Law in a Land Where the Music has Stopped
By Leo Evans
To begin by way of analogy, listening to John Borrows lecture is like joining a feast after one has just eaten. You think you’re secure in a satiated state, but then he offers you more; the lawyer as the new Indian agent, pedagogy as learning to walk, law as a verb (and NOT as a noun). And all of those are from just a few moments in a two-hour talk replete with ideas that set my mind alight. I was left with that distinct impression that Professor Borrows has forgotten more about law than I had ever learned…and I’m a student at a place some consider among the foremost institutions for the study of law in Canada. Either he is one who walks in the model of Tecumseh, his third great uncle (as measured through Anishinaabe kinship), or I need to do a lot more walking on those sandy shores where the foundations of the common law rest. John Borrows came to the law school and spoke with us about the trajectory of his academic life as an Anishinaabe/Ojibway legal scholar.
As I haltingly gave voice to my introduction of his lecture, one need say little more than “John Borrows” to tell of one of the most important leaders in Canada today. But he has only a modest title, carrying the mantle of Professor, and has not political office (at least in the halls of power as understood by the Government of Canada). What kind of leader is he? He is a leader in that way Indigenous people know better than most; John Borrows is a man who listens, and waits, and then speaks his peace — he tries to make himself understood but is the first to admit his faults and the ways his thoughts might not (yet) be fully formed. He speaks with authority while at the same time making clear that he may be wrong. He doesn’t present himself as a champion, let alone someone beyond reproach or peer. Yet he inspires us to greatness. Said with tongue-in-cheek, this is John Borrows’ world…I’m just living (and writing) in it.
To narrow down to just one of the many themes one may draw from Professor Borrows’s talk at the law school, I have to pick the form of harmonization he made use of when describing what he was going to talk about at the event the day before his lecture. I don’t remember if he returned to that theme, but I wrote it in my notes as:
Such a multifaceted way of thinking about Indigenous legal orders is perhaps John Borrows’s greatest gift to us, one that he shares freely (and I expect that he would say he had himself received). It reminded me of the central theme from the PhD dissertation of Professor Robert Clifford, who brought me to tears when he distilled his work down to this idea: the ancestors are the song, and we are the echo.¹ John Borrows and Robert Clifford are such profoundly vibrant echos of their ancestors that it makes someone like me, who knows how pitiful of an echo I am of my Grandmother, let alone the rest of my ancestors, weep with shame and then wipe away those tears, promising to strive towards that harmonization they embody.
As I return to thinking about this idea of harmonizing stories as the work of law, I am struck by the how this idea is already used (or abused?) in our understanding of Canadian law; the context of the “overlapping” jurisdiction between provincial and federal governments. It seems that we ignore the overlapping necessarily implies that there are gaps, spaces that neither covers. For us, this is painfully illustrated by the lives of those who suffered and were vindicated in what is now known as Jordan’s principle. The profound discord one finds within the common law, perhaps especially in Canadian law, gives voice to what may be a total failure to understand what “harmony” is, or could be. It is a tired trope to say that anyone can find authority to support any possible position, even the Devil can quote scripture. But legal education in Canada still entails successive classes of students reading a small handful of cases (and only certain parts of the decisions) and believing they are well-versed in the law. In reality, they are only able to see the iceberg above the water and fail to appreciate how much lies below the surface, how much of the law isn’t taught, how much has been lost to false and faulty reporting. Their eyes are narrowed and then glaze over by being given too many readings and too little time. They survive the law school experience and any passion for academics is drilled out of them. Just apply the legal test! You don’t actually need to read the decision, just google the ratio. What are other people saying? Just copy from the consensus, conform to the opinion of the legal community.
John Borrows invites us to think in another way; all the stories need to be told and retold, not just the “relevant” or “cognizable” ones. We would benefit from a broader appreciation, and not merely a deep one of just specific cases. But educational institutions have gradually made this shift from the generalist, who studied the artes liberalis in a broad way — touching on so many different areas of study but never being much of an expert in any one, towards the specialist, who can become a professional or a professor. This results in graduates who think they are (well) educated but who miss the forest for the trees. This has also happened in the law school, and especially in this moment, when there is this (apparent) effort to incorporate the other than Canadian (read: common) law tradition into legal education. What we (seem to) fail to appreciate is that this effort to incorporate Indigenous legal orders and to teach about Aboriginal law in a meaningful way runs up against the perennial, and rather insatiable, thirst of students to learn “hard law”, or at least those parts of the law that are fertile grounds for “legal tests” (the friend of the person facing a novel fact pattern).
One of the most poignant slides made use of by John Borrows offered us a contrast of stories of two of his forebears Peter J. Kegedonce, his great-great-Grandfather and Margaret McCloud, his great-great-Grandmother. On the left, Peter J. Kegedonce is seen depicted bearing many cultural touchstones of Indigenous people. Perhaps most striking is his garb: as an Anishinaabe man, one would expect him to wear the clothes of the Anishinaabe. Yet being married to a Métis woman, who was the one who made his clothes (or so we may assume), we are treated to an exquisite view of her handiwork. Most prominent, and distinctly Métis, is the sash he wears around his waist — yet many parts demonstrate her influence, in more subtle ways. His depiction also draws our attention to the two medals he wears around his neck; one, a memento from treaty negotiations in 1854: the other medal is in recognition of another journey he made, to save a white man stricken ill, who needed to be carried (by sled) to Toronto or face almost certain peril. Making the journey over many days in the cold of the latter part of year, their life was saved and the story told until it reached (apparently) Queen Victoria. As a token of appreciation, a medal was struck to commemorate the valiant deed. So, he carried both medals to help tell the story.
The other story, of Margaret McCloud, is actually immortalized in a book of stories: Tales of Nokomis (note, the learned reader will know the title means “grandma’s stories”, which become clear after the first one). As John Borrows recounts, this set of tales were some of those she shared with Patronella Johnston, who collected them in a book that was first published more than fifty years ago now. Many of the stories touch upon familiar themes (e.g., explaining the absence of evil lizardsspirits in our contemporary experience due to their embodiment in lizards after they lost a bet with the beloved hero Nanabush — the very first story), while others offer interesting perspectives on the place in time when Margaret McCloud shared those stories (i.e., after contact, when the strict limiting of the telling of stories to the winter had been relaxed due to the greater discretion resulting from the de facto ease with which food was available, when compared to the time before contact). Listening with an ear to harmony, there are so many disparate strands that are hard to reconcile into one coherent whole. Such an orchestra of chaos could never result in music, or only by some fluke…for someone with a “tin ear.”² Yet within Indigenous understandings, there is a way to look at stories to glean morals that allows us to find variations on a theme. This method of case study was pioneered by John Borrows and offers an interesting corollary to the model by which case law is studied in common law communities to teach about the ways the law runs up against the vicissitudes of life.
Beyond the obvious error of wanting life to fit into the sharp edges of any given legal test (without being worse for wear), the deeper bend is towards not being accountable in ways that do not attach to a common law source. Here we see that the many ways the law is taught in Canada manifests a thinly veiled hostility to civil law concepts, interpretative frameworks, and divergent ways of thinking about society and the place for law — to say nothing of Indigenous legal orders. This leaves us with a false harmonization where only one part plays most loudly and drowns out the others. That’s noise, not music. There is so much more promise in the multiplicity of stories and in finding ways of linking and bridging between them, to imagine law taking the form of something like jazz. We would have so much to learn from one another as peers, as equals. We don’t need one supreme source of law that tells only one story over and over again, but that never seems to change. Rather we need to tell our stories in that familiar Anishinaabe way; always a little different, tailored to the time and place but also with acknowledgement of the limits of the story-teller, who may forget (or omit) certain parts, while still trying to make a point and strike a cord. It’s when we take up those cords and bundle them into a harmony that we can say that we are learning about life and law together. John Borrows is inviting us to do better as students of the law and I think we can follow his lead, and join him in carrying our songs on into the future, where the echos live.
This post can also be read at the Canadian Network of Law & Humanities website: cnlh.ubc.ca
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[1] “THE OLD PEOPLE ARE THE SONG, AND WE ARE THEIR ECHO: RESURGENCE OF W̱SÁNEĆ LAW AND LEGAL THEORY”, PhD Thesis defended in York University, Toronto (2022)
[2] Transcript, Delgamuukw v The Queen, 1991. See also Delgamuukw v British Columbia, [1991] 5 CNLR 5, 79 DLR (4th) (BCSC), [1991] BCJ No 525 (QL)