Canadian Common Law and Indigenous Legal Orders, Paving the Way for Reconciliation
In September 2018, the University of Victoria (“UVic”) welcomed its first cohort of 26 students (Indigenous and non-Indigenous) into the joint law degree program in Canadian Common Law and Indigenous Legal Orders. Students will graduate in four years with two professional degrees: Juris Doctor (“JD”) and Juris Indigenarum Doctor (“JID”). This program, the first of its kind in the world, combines the study of common law with Indigenous laws and governance. The objective is to provide students with the skills needed to practice in Canadian common law and in Indigenous legal systems – and to instill in students a deep understanding of the interface between them.
According to UVic Law Professor, John Borrows, Indigenous scholar and co-founder of the program, “The difference between Indigenous law and common law is that Indigenous peoples look to the land to find the principles for judgment, whereas the common law looks to old cases in libraries to decide how to act in the future.” Co-founder of the program and Indigenous scholar, Professor Val Napoleon, adds the following: “There’s a richness of history in Indigenous laws together with ways of managing that are thousands of years old. They not only help Indigenous peoples to govern ourselves today; they provide the foundation for a new relationship with Canada… and that matters!”
The vision for the Indigenous Legal Orders program was originally conceived in 1995 when Professor Borrows, alongside other Indigenous scholars, including James (“Sakej”) Youngblood Henderson working at the Native Law Centre Summer Program in Saskatchewan, imagined what it would be like to one day teach Western property law through Indigenous legal customs. Since then, Professor Borrows credits the broad nationwide involvement of fellow Indigenous scholars, Indigenous communities and leaders, professors, and benchers across Canada for making that vision a reality. He further attributes co-founder Val Napoleon joining the UVic Faculty of Law in 2011 as being instrumental in the final stages of planning and implementation of the program.
Professor Borrows expressed his gratitude toward all involved, specifically acknowledging the partnership between the UVic Faculty of Law and the ẈSÁNEĆ Nation and the ẈSÁNEĆ School Board whose territory (spanning the Saanich Peninsula) the university sits on. The “field study” course, described as a crucial component of the program entails students working with ẈSÁNEĆ peoples in their territory over one school semester. This intensive place-based course will pair students up with ẈSÁNEĆ elders and knowledge keepers on various community projects with a focus on analyzing legal issues through ẈSÁNEĆ peoples legal traditions. There is a further focus on the colonial relationship and power structures between ẈSÁNEĆ and Canadian law, along with the opportunities and barriers this creates for the revitalization of ẈSÁNEĆ laws. The goal is to arm students with a collaborative community-based methodology needed to work effectively with a particular Indigenous community, so that the skills learned with the ẈSÁNEĆ Nation are transferrable to distinct Indigenous communities across Canada.
Academics aside, Professors Borrows is excited about the opportunity the joint degree program creates for reconciliation. The program directly addresses numbers 26, 27, 28 and 50 of the Truth and Reconciliation Commission of Canada’s Calls to Action. Through the rediscovery, revitalization and implementation of Indigenous laws, the state will be in a better position to work collaboratively with Indigenous Nations in a legal framework informed by both the Canadian Common Law and Indigenous Legal Orders.
1 JD/JID Joint Degree Program in Canadian Common Law and Indigenous Legal Orders brochure, available online.
Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.