Braiding Legal Orders

Implementation in Canada of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is a pivotal opportunity to explore the relationship between international law, Indigenous peoples' own laws, and Canada's constitutional narratives. Two significant statements by the current Liberal government - the May 2016 address by Indigenous Affairs Minister Carolyn Bennett to the Permanent Forum on Indigenous Issues at the United Nations and the September 2017 address to the United Nations by Prime Minister Justin Trudeau - have endorsed UNDRIP and committed Canada to implementing it as “a way forward” on the path to genuine nation-to-nation relationships with Indigenous peoples. In response, these essays engage with the legal, historical, political, and practical aspects of UNDRIP implementation. Written by Indigenous legal scholars and policy leaders, and guided by the metaphor of braiding international, domestic, and Indigenous laws into a strong, unified whole composed of distinct parts, the book makes visible the possibilities for reconciliation from different angles and under different lenses.

The essays in this book present important perspectives on the role of Indigenous legal traditions in reclaiming and preserving the autonomy of Aboriginal communities and in reconciling the relationship between these communities and Canadian governments. Although Indigenous peoples had their own systems of law based on their social, political, and spiritual traditions, under colonialism their legal systems have often been ignored or overruled by non-Indigenous laws. Today, however, these legal traditions are being reinvigorated and recognized as vital for the preservation of the political autonomy of Aboriginal nations and the development of healthy communities.

An exploration of economic rights afforded Indigenous peoples in international law and their diffusion to international trade and investment instruments.

Indigenous traditions can be uplifting, positive, and liberating forces when they are connected to living systems of thought and practice. Problems arise when they are treated as timeless models of unchanging truth that require unwavering deference and unquestioning obedience. Freedom and Indigenous Constitutionalism celebrates the emancipatory potential of Indigenous traditions, considers their value as the basis for good laws and good lives, and critiques the failure of Canadian constitutional traditions to recognize their significance. Demonstrating how Canada’s constitutional structures marginalize Indigenous peoples’ ability to exercise power in the real world, John Borrows uses Ojibwe law, stories, and principles to suggest alternative ways in which Indigenous peoples can work to enhance freedom. Among the stimulating issues he approaches are the democratic potential of civil disobedience, the hazards of applying originalism rather than living tree jurisprudence in the interpretation of Aboriginal and treaty rights, American legislative actions that could also animate Indigenous self-determination in Canada, and the opportunity for Indigenous governmental action to address violence against women.

With characteristic richness and eloquence, John Borrows explores legal traditions, the role of governments and courts, and the prospect of a multi-juridical legal culture, all with a view to understanding and improving legal processes in Canada. He discusses the place of individuals, families, and communities in recovering and extending the role of Indigenous law within both Indigenous communities and Canadian society more broadly."--Pub. desc.

In 2007, 144 UN member states voted to adopt a Declaration on the Rights of Indigenous Peoples. Australia, Canada, New Zealand and the US were the only members to vote against it. Each eventually changed its position. This book explains why and examines what the Declaration could mean for sovereignty, citizenship and democracy in liberal societies such as these. It takes Canadian Chief Justice Lamer’s remark that ‘we are all here to stay’ to mean that indigenous peoples are ‘here to stay’ as indigenous. The book examines indigenous and state critiques of the Declaration but argues that, ultimately, it is an instrument of significant transformative potential showing how state sovereignty need not be a power that is exercised over and above indigenous peoples. Nor is it reasonably a power that displaces indigenous nations’ authority over their own affairs. The Declaration shows how and why, and this book argues that in doing so, it supports more inclusive ways of thinking about how citizenship and democracy may work better. The book draws on the Declaration to imagine what non-colonial political relationships could look like in liberal societies.

This book proposes a new pedagogy for addressing Aboriginal subject material, shifting the focus from an essentializing or “othering” exploration of the attributes of Aboriginal peoples to a focus on historical experiences that inform our understanding of contemporary relationships between Aboriginal and non-Aboriginal peoples. Reflecting on the process of writing a series of stories, Dion takes up questions of (re)presenting the lived experiences of Aboriginal people in the service of pedagogy. Investigating what happened when the stories were taken up in history classrooms, she illustrates how our investments in particular identities structure how we hear and what we are “willing to know.”

We find our way forward by going back. The invented history of the Western world is crumbling fast, Anishinaabe writer Patty Krawec says, but we can still honor the bonds between us. Settlers dominated and divided, but Indigenous peoples won't just send them all "home." Weaving her own story with the story of her ancestors and with the broader themes of creation, replacement, and disappearance, Krawec helps readers see settler colonialism through the eyes of an Indigenous writer. Settler colonialism tried to force us into one particular way of living, but the old ways of kinship can help us imagine a different future. Krawec asks, What would it look like to remember that we are all related? How might we become better relatives to the land, to one another, and to Indigenous movements for solidarity? Braiding together historical, scientific, and cultural analysis, Indigenous ways of knowing, and the vivid threads of communal memory, Krawec crafts a stunning, forceful call to "unforget" our history. This remarkable sojourn through Native and settler history, myth, identity, and spirituality helps us retrace our steps and pick up what was lost along the way: chances to honor rather than violate treaties, to see the land as a relative rather than a resource, and to unravel the history we have been taught.