Editorial Introduction to John Borrows’, “Language and Anishinaabe Consultation Law”
Dr. John Borrows is a highly distinguished Anishinaabe law practitioner and the Canada Research Chair in Indigenous Law, from the Chippewas of the Nawash Unceded First Nation. The Faculty of Law at McGill is very grateful to have had Borrows, a renowned expert on Indigenous law and Indigenous constitutionalism, as Distinguished Tomlinson Visiting Professor this year. During his visit at McGill, Borrows has been very generous with his time, leading an Anishinaabe law outdoor education course and giving various lectures including “From Principle to Implementation: Indigenous Rights, the Constitution and UNDRIP in Canada” in September 2017 and “Using Private Law Models to Revitalize Indigenous Law: Anishinaabe Law and Dispute Resolution – A Proposal” in January 2018.
Borrows is an advocate for the revitalization of Indigenous legal orders. He has written elsewhere about the connections between Indigenous law, cultures, and languages. For example, in Drawing Out Law: A Spirit’s Guide (2010)
Borrows relays the story of Mishomis, who remembers the teachings of his grandmother, including that the Anishinabek “laws were even embedded in the language that had been given to them”. Likewise, in Recovering Canada: The Resurgence of Indigenous Law (2002), Borrows underscores the centrality of language to Indigenous ways of life, noting that “[f]or millennia, Aboriginal peoples created, controlled, and changed their own worlds through the power of language, stories, and song”.23 He then goes on to elucidate the direct relationship between the suppression of Indigenous languages and the loss of self-determination experienced by Indigenous peoples by stating that “this loss” results from the fact that “the language and culture of Canadian law is not their own, and legal interpretations of their traditions and history are centralized and administered by non-Aboriginal people.”24 Throughout his work, then, Borrows considers the relationship between Indigenous languages and laws, allowing Indigenous and non-Indigenous readers greater insight into Indigenous worldviews and legal frameworks.
In his piece, Language and Anishinaabe Consultation Law, Borrows writes about the role of language in the revitalization of Indigenous law. He references the Deshkan Ziibiing/Chippewas of the Thames First Nation use of Anishinaabemowin (Anishinaabe language) in consultation law as an example of an Indigenous community using their language to reinvigorate their own regulatory structures. Borrows describes how coming together for community-based language revitalization initiatives strengthens relationships and obligations, and how this leads to enhanced legal ties. Borrows centers relationships in his discussion of the interconnections between language and law, explaining that Anishinaabe language and law stem from forms of kinship, i.e. the rights and responsibilities between beings, both human and non-human. He also draws out the relations to land, stating that Anishinaabe landscapes shape Anishinaabe language, and by extension, form Anishinaabe law. Borrows closes the article by emphasizing that Indigenous languages form the basis not just for Indigenous laws, but Canadian laws as well. In this way, Borrows demonstrates that the revitalization of Indigenous language affects not only Indigenous legal landscapes, but those of non-Indigenous Canadians as well. Thus, Borrows concludes, only a reconciliation effort that “recognizes and affirms Indigenous law and language as a necessary part of our future together as Canadians” will prove successful.
22 John Borrows, Drawing Out Law: A Spirit’s Guide (Toronto: University of Toronto Press, 2010) at 3-16.
23 John Borrows. Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press (2002) at 92.
Language and Anishinaabe Consultation Law by John Borrows
The revitalization of Indigenous law often occurs simultaneously with the revitalization of Indigenous language because language and law are so closely interrelated. Indigenous peoples are simultaneously strengthening their legal and linguistic resources in many ways. An oral tradition often lies at the heart of these processes. There are more second language speakers of Indigenous languages than ever before. People converse with one another in homes, schools, government offices, and other places to improve their skills. They use language tables, story-telling events, curricular development, second language learning events, and other formal and informal occasions to spread this work. As Indigenous peoples are brought together in these oral forums, relationships and obligations are thickened, which generates and enhances the peoples’ customary legal ties.
Furthermore, many communities across the country are putting their linguistic traditions to paper in their work to reinvigorate or create regulatory and dispute-resolution structures. This can be seen in constitutional enactments, court applications, codes of conduct, environmental assessments, bylaws, and other guiding documents.
I am Anishinaabe, and I have seen this occur throughout Anishinaabe territories in Quebec, Ontario, Manitoba, and Saskatchewan. The revitalization of Anishinaabe language and law is evidenced through statutory and regulatory enactments within Anishinaabe communities. Canadian law often requires governments to consult and accommodate Indigenous peoples when their Aboriginal rights may be infringed.25 In response, and of their own volition, Indigenous peoples have enacted laws to articulate standards for satisfying conditions for adequate consultation and accommodation in their legal systems. These laws often reference Indigenous languages in some detail.
For example, in November 2016 the Deshkan Ziibiing/Chippewas of the Thames First Nation passed Wiindmaagewin, a Consultation Protocol for the protection of their lands.26 The document begins by stating the law’s purpose, which is to ensure the protection of their watersheds, relationships and rights. Next, they declare reserved rights in their territories and discuss their treaties with the Crown from the 1760’s forward. The law then outlines “principles of inter-societal governance and communication” under headings related to government, communication, co-existence and economy.
The document describes these principles using Anshinaabemowin in each instance. In the process, this law provides guidance for how these principles will be interpreted. It says:
Our engagement with other communities stems from our recognition of several principles, which derive from our Creator’s gifts to us of life and land, and from our Creator having placed us within a world full of relationships with others. Our responsibility to maintain these relationships, in accord with principles derived from our creation story, is central to our continued wellbeing as a people. These principles animated our ancestors in their treaty partnerships historically, and they remain alive today in our dealings with federal, provincial, and municipal bodies.27
As the principle of gdinawendimi (we are all related) communicates below, the Anishinaabe creation story places the agency of animals and their concerns at its centre. Our clans lie at the heart of kin-based governance relationships. During creation, clan ancestors talked to one another and Anishinaabemowin records their interactions. The way our clans are described in our language reinforces the animal’s agency and provides an insight into their personalities. For example, Chijaak (crane) is a leading spirit, ma’iingan (wolf) is one who makes strange, and miiskwaadesi (turtle) is the one who reflects the sun’s red light. Without the animals using their personalities by taking action and creating space for the land to grow and flourish, Turtle Island would be dead and devoid of life. They set the example for Anishinaabe governance – taking action through counselling together and using their personalities to bring about something new, in ways which draw upon our language to describe their work in terms of ‘relatedness’. Thus, in this statement one sees how Anishinaabe language is related to the land and their relationships as expressed in their origin stories and treaties.
The Wiindmaagewin, a Consultation Protocol document contains four principles of governance: (1) Gdinawendim, (2) Mno-bmaadiziwin, (3) Naaknigewin, and (4) Anishinaabe dbendizawin. These four principles and their relationships to consultation law are described below. The document also contains principles of communication, outlined as Zgaswediwin, Ginoondiwin, Gii-nenmaasiinaawaan, and Chi-dibaakinigewin. Finally, principles of co-existence and economy are identified as Gdoonaaganinaan, Maatookiiwin, Gnawenjigewin, and Niigaan-inaabiwin. After a detailed discussion of these principles, the Consultation Protocol goes on to identify consultation processes, requirements, and dispute resolution principles. The law is 21 pages long, with an additional 11 pages of maps and appendices.
To provide a glimpse of how Deshkan Ziibiing consultation law embeds Anishinaabemowin in the document, the principles related to government are excerpted below. They resonate with life, as they reference ‘langscapes’ to express sound legal principles throughout their territories. A langscape describes the way an Indigenous language relates to an ecology. As Professor Sákéj Henderson observed: “Out of the sounds of life forces in the ecology … [a] cognitive recognition and acceptance of the interrelations of the shared space inform their languages, thus creating a shared worldview, a cognitive solidarity, and a tradition of responsible action.”28
The grandfather/grandmother teachings are referenced in Anishinaabe langscapes, along with the good life, mino-bimaadiziwin, and treaties. These teachings are: Zaagidwin (love), Debwewin (truth), Zoongidewin (bravery), Dibaadendiziwin (humility), Nibwaakaawin (wisdom), Gwayakwaadiziwin (honesty), and Manaaji’idiwin (respect). These principles reveal the contours of a legal tradition that uses land and relationships with that land as resources for regulatory and dispute resolution structures.
(1) Gdinawendimi: “We are all related”
A basic truth of our creation story is that we are related to everything that shares the world with us. Our original Anishinaabe doodem [clan] ancestors—Ajijaak “Crane,” Waabizhesh “Marten,” Bneshiinh “Bird,” Wawashkesh “Deer,” Maang “Loon,” Giigoonh “Fish,” and Mko “Bear”—all demonstrate that we humans are related to, that is, are family with, beings who are other than human. That our ancestors shaped our treaties with Britain by inscribing many of those same doodemag [clans] on treaty texts indicates that they extended the web of kinship relations to include settlers. We expect that all consultation and discussion with governments and third parties will focus on how the proposed project will foster this relatedness.
(2) Mno-bmaadiziwin: “The good life”
We understand that the Creator placed us within our world’s web of spiritual and bio-physical relationships in order for life to flourish, for all to enjoy the world. Life flourishes when we base our relationships on the gifts of the Seven Grandfathers: Nbwaakaawin “wisdom,” Zaagidiwin “love,” chi “respect,” Aakde’ewin or Zoongide’ewin “bravery,” Gwakwaadiziwin “honesty,” Dbaadendiziwin “humility,” and Debwewin “truth.” We expect that all proposals from and discussions with governments and third parties will demonstrate how the proposed project enhances the good life for all our relations.
(3) Naaknigewin: “Law”
This measure for our decisions and determinations is the gift of the Creator. We expect that all consultation and discussion with governments and third parties will aim to respect and embody law as the measure for our decisions provided by the Creator.
(4) Anishinaabe dbendizawin: “Anishinaabe independence” or “self-determination”
Some of our elders overcame their repressive years spent within the local residential school, and were able to play crucial roles in entrenching the recognition of our rights into sec. 35(1) of Canada’s Constitution Act, 1982. Their personal struggles have taught us that we were created to live as an independent people, and are therefore able to ally with, but not to become subject to, other independent peoples. Many British treaty negotiators failed to understand this. Canada’s unilateral imposition of regulations on our people, and its presumptuous administration of our lands, stems from its own consistent failure to understand this. Nevertheless, we have seen in some settler leaders, such as Sir William Johnson and his work at Niagara in 1764, the enduring possibility that our peoples might finally create a relationship of equality. William Johnson’s Two Row Wampum embodies this alliance of equals, each party free to follow its own way without interference, but each also attentive to the wellbeing of the other. We expect that all proposals from governments will respect this most basic tenet of the Two Row Wampum.
One sees in these four principles the idea that treaties were an invitation for the Crown to live in accordance with Anishinaabe laws, as structured through language. When Anishinaabe people entered into treaties, they used their own language, and their ideas were translated into English. If we understand that Anishinaabemowin is the co-language of our treaties, we would understand that Anishinaabe law likewise co-created Canada’s constitution.
Canada’s legitimacy derives from these instruments and agreements; without them Canada can only claim land and governance in this country through racist doctrines like conquest and terra nullius, which the Supreme Court of Canada has explicitly rejected. The wampum belts which were shared between Indigenous peoples and the Crown in central Canada when treaties were formed likewise show how Indigenous communicative forms often dominated early legal formation in North America. My colleague Heidi Stark has also made similar points: that treaties were also based in the sounds and life of the earth, thus passing Anishinaabe laws to others to guide the creation of non-Indigenous laws in North America.29
These developments show how Anishinaabe law continues to be a vital force in the world, particularly where consultation might be an issue. They show how the revitalization of Indigenous language is a necessary part of this work. Indigenous language and law’s revitalization demonstrates that neither French nor English, nor the common law nor civil law, can claim exclusivity (together or separately) as Canada’s only official legal and language formats. In many parts of the country our laws build on the land’s first languages. Furthermore, reconciliation in the present day can only be accomplished if it recognizes and affirms Indigenous law and language as a necessary part of our future together as Canadians.
25 Haida Nation v British Columbia (Minister of Forests)  3 SCR 511 at para 25:
“Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.”
See also Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 69: “[t]he doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada.”
26 Deshkan Ziibiing/Chippewas of the Thames First Nation Wiindmaagewin Consultation Protocol, Final (26 November 2016), online.
27 Ibid at 7.
28 Sákéj Henderson, “Mikmaw Tenure in Atlantic Canada” (1995) 18 Dalhousie LJ 196 at 220–221.
29 Heidi Kiiwetinepinesiik Stark, “Marked by Fire: Anishinaabe Articulations of Nationhood in Treaty Making with the United States and Canada” (2012) 36:2 American Indian Quarterly 119.