Native Law

Having survived attempts to destroy and assimilate them, indigenous groups are arguably entering a period of renewed power and influence on the world stage. Perhaps the weapon most consistently used against them was the seizure of land. For many land is a symbol of identity, it represents a guarantee of subsistence. According to Marc Chapin of Native Lands "In the past Indigenous people have lost their land simply because they couldn't prove that they owned it."

But proof is not everything; according to one North American lawyer:

"Linguistic barriers, lack of formal education, and unfamiliarity with the basic rules and values which govern Anglo society are but a few of the factors which frequently place the indian at a disadvantage in intercultural exchanges."

In Canada there have been increasing numbers of native people entering the legal profession and positive efforts are directed at encouraging this. But there are many fundamental contrasts between traditional aboriginal outlooks and european perspectives, and these have to be faced.

In the west crimes are generally seen as committed against the state, blame and punishment are important and remorse is largely irrelevant to the outcome of trial. In contrast, traditionally aboriginal societies see individuals as the plaintiff party, problem solving and harmony are emphasised rather than blame (some of our indian languages have no word for guilt) and repentance is important in the judgement of wrongs.

What this means is that we often have different understandings of the same situations. In making a confession aboriginal people are generally accepting the bare facts, NOT culpability. Stephen Point, head of the Native Law Programme at UBC (University of British Columbia) told the story of a native chief asked to give evidence.

"Do you swear to tell the truth?"

"But I cannot. I can only tell you what I know."

Aboriginal communities historically depended on the ability of individuals to get along and so the GROUP is the defining social unit. The distance between this perspective and the individualist basis of western law is difficult to appreciate.

Point explained that in his society it was generally assumed that someone was telling the truth, to suggest they lied would be a terrible insult, if it turned out that they did they would be totally ostracised. As a student, cross examination was something he found very difficult, to assume that the subject would lie, and to question aggressively.

I asked both Steven Point and John Borrows (who recently left the UBC Native Law Programme) how the different backgrounds blend together in the legal profession. Many of the earliest native students who were encouraged into law school did poorly because of their responsibilities as chiefs and family members at home. But there are also tremendous social problems on many of the reserves which add to the pressures . One student Borrows knew had to deal with the suicides of 15 friends during his time at law school, it is difficult to study when your "world is falling apart around you." But the subject matter can also be quite a problem in itself. In the study of property law native students find themselves learning how their communities were dispossessed in both the distant, and the not so distant past. It often seems that the game was rigged from the start and it can be "a hard pill to swallow" for many native students.

Borrows noted that the students he sees are atypical in some respects, having already done a university degree and thus forming a largely self selected group, and like everyone else they want to do well. In his experience the real differences start to become apparent later in a legal career, after graduation. In general he feels native students lack that common law school ambition of a lucrative job in large firm. This was something echoed by Stephen Point who agrees that most aboriginal students go into law because they want to contribute to their communities, to fight for their rights.

So now we have looked at the effects of law school on aboriginal students, what effects are those students in turn having on the legal system? Borrows believes aboriginal lawyers may be able to develop new arguments in the courts and explain otherwise muddy issues in terms that judges and juries can understand. In fact the increased aboriginal influence has already brought adaptations of the modern court setting into a circular, less hierarchical arrangement and consequently a less intimidating one. In the case of the Dakota Ojibway who have assumed control over their own justice system, the change saw a huge improvement in the crime rates on the reserves. Point drew an analogy with other groups which have been routinely discriminated against. Once they are there inside the power structure they can't be so easily insulted, persecuted or dismissed because they form a part of and can affect the peer group which has so far tolerated such behaviour. I wondered about the limits that the law itself places on the possibilities for change. Borrows felt it was not adequate to move in only one direction, both the interpretation and the letter of the law can occasionally be sources of conflict.

In the province where I am writing, British Columbia, a combined tribal land claim for control over 58,000sq.km. of ancestral land was rejected largely because of an old and controversial issue: the admissibility (or otherwise) of oral testimony. It will go to appeal in the Supreme Court of Canada this year.

This case brings us full circle -- to the issue of proving land ownership. The courts generally reject oral history as admissible proof of historical ownership of the land. Our society says "sure, you can join the game, these are the rules -- just follow them and we'll get along fine" but to some groups it seems to be intrinsic to the rules that they lose. (We have to remember that the courts are not qualified, or are not willing, to decide some deeper issues, they leave that to Parliament).

Borrows notes that some of the problems associated with oral testimonies are not so apparent when for instance the Hudsons Bay Company has been involved in similar cases. He believes there is still a problem of an underlying inconsistency in the functioning of the legal system.

The influx of native people into the Canadian legal system may be the seed for significant change. It represents one step towards bringing together modern Canada and the original "Canadians." One hopes it will ultimately help to bridge the chasm which still seems to separate white and indian society.

Euan Taylor, Vancouver, Canada
ertaylor@unixg.bc.ca

Sources

Robert Swann, Arizona Law Review, 1970, p594.
Law and Identity, Linda Medcalf, 1978.
New Internationalist July 1994.
UBC Law Review, Special Edition, 1992.

Thanks to

John Borrows who has moved from the University of British Columbia to Osgoode Hall Law School.

Stephen Point who has replaced him as head of the Native Law Programme and divides his time between the responsibilities of a chief and those of a professor.