Toward an Expanded Role for Indigenous Law in the Assessment of Moral Blameworthiness in Criminal Matters

Creating Legal Space for Animal-Indigenous Relationships

Reviewed by: Law's Indigenous Ethics by John Borrows Keith Richotte Jr. (bio) Law's Indigenous Ethics by John Borrows University of Toronto Press, 2020 THERE IS MUCH (very understandable) rhetoric in Indigenous studies about decolonizing various institutions and structures. Yet guidance on how to go about decolonizing is far less abundant than the calls to do so. The very ambitiousness of such a project is matched only by its daunting nature. How does one go about the work of decolonization? Obviously many have sought to accomplish such ends in many contexts and have done so long before we had the language that we presently use in the academy. Nonetheless, chronicles of acts of resistance and calls for change far outnumber models for how to effectuate the type of change that would benefit the Indigenous world. Consequently, we are fortunate to have a scholar such as John Borrows to offer guidance as we continue to collectively try to figure it out. The prolific Borrows's new book, Law's Indigenous Ethics, should be read by anyone who is interested in how to think about the decolonization project in a practical, actionable way. Admittedly, to those only looking at the cover and a blurb it might seem to have a limited audience: it is a work about Canadian law and Aboriginal peoples, particularly the Anishinaabe. Yet this critical text can speak to a broad audience because it takes seriously the question of how we might strategize decolonizing efforts in the future. The legal cases and doctrine as well as the Canadian context are central to Borrows's argument, but they are not barriers to those whose work and region of study do not overlap. Borrows is an exceptionally skillful and gentle writer, and his wisdom will be obvious to anyone who is not intimidated by his framing devices. On the topic of framing devices, Borrows divides his text into seven chapters, each one thematically consistent with what the author describes as the "Seven Grandmother/Grandfather Teachings of the Anishinaabe" (14): Zaagi'idiwin (love), Debwewin (truth), Zoongide'ewin (bravery), Dabaadendizowin (humility), Nibwaakaawin (wisdom), Gwayakwaadiziwin (honesty), and Manaaji'idiwin (respect). By examining a legal question that is concerned with land through these lenses, Borrows demonstrates how and where it is possible to invert the colonially imposed structures of law and [End Page 146] legal reasoning to offer Indigenous legal reasoning that can lead to a more just, coherent, and integrated body of law for everyone involved. This is not to suggest that Borrows naively asserts that the Seven Grandmother/Grandfather Teachings will cure the Indigenous world or the colonial state of their own accord. Rather, he makes a more sophisticated and reasonable argument that the Seven Teachings offer another mode of legal reasoning to solve modern problems. Each chapter demonstrates how this can be accomplished. Nor is Borrows unaware that the Seven Teachings are criticized in some parts of the Indigenous world as modern inventions that are insufficiently connected to past practices or philosophical conceptions. As is his way, Borrows converts this alleged weakness into a strength. He forcefully demonstrates both that the decolonization effort must first begin at home and the possibilities that are available by asserting an active Indigenous legal philosophy. "Indigenous law can be a living and dynamic force if not tethered to what is regarded as being integral to aboriginal communities prior to European contact or sovereignty. The Seven Grandmother/Grandfather Teachings could broaden our legal imagination if they are regarded as current expressions of Indigenous authority in the modern world, regardless of whether their origin is old or new" (15). Law's Indigenous Ethics is an excellent book that has many uses. A terrific text for courses in Canadian law, comparative law, and comparative Indigenous problem solving, it perhaps most usefully offers a proactive vision for anyone interested in decolonization efforts throughout the Indigenous world. [End Page 147] Keith Richotte KEITH RICHOTTE JR., Turtle Mountain Band of Chippewa Indians, is associate justice of the Turtle Mountain Court of Appeals and associate professor of American studies, University of North Carolina, Chapel Hill. Copyright © 2022 Regents of the University of Minnesota

ABSTRACTThis paper argues that interspecies justice is integral to rising decolonizing nationalist ‘reconciliation’ efforts in Canada and that such an interspecies perspective on reconciliation carries a significant promise for developing a new legal subjectivity for animals in settler colonial law to change the conditions of the lives of animals materially. I demonstrate that the personhood ascribed to animals in numerous Indigenous legal orders in Canada, as well as underlying non-anthropocentric worldviews where animals are not considered inferior to humans but are to be regarded as kin, should stimulate a new legal conversation in Canadian law about who/what animals are and the legal subjectivity and regard they merit among all those committed to reconciliation. Indigenous legal orders offer animal advocates a new and potentially transformative legal argument as to why the continued legal classification of animals as a property in Canadian law is exploitative and incompatible with a dominant legal order seeking to foster genuine reconciliation. Notwithstanding the residual anthropocentric elements of Indigenous worldviews promoting ‘respectful’ or ‘reciprocal’ relations with animals, and how such elements might be co-opted by settler society, this new reconciliation-originating animal-friendly argument has the potential, if adopted, to alter the material conditions of lives of many animals, most notably in intensive agriculture.

This chapter analyzes how Canadian law has been, and continues to be, a central mechanism that reproduces and operationalizes gendered colonial ideologies that work against Indigenous women’s health. It argues practical and critical approach to understanding Indigenous laws as a determinant of health must be one that also engages with the limits of Indigenous law. Indigenous people experience health in ways that are distinct from non- Indigenous people in Canada. Social determinants of health are one way of engaging in contextual analyses of well-being. Few scholars bring together work on colonialism as a determinant of health and law as a determinant of health, to examine state laws as a colonial institution that undermines Indigenous well-being. The rule of law within the Canadian legal system has not ensured equality and supported well-being for Indigenous women as a group. Indigenous feminist legal theory is an approach for directly engaging with Indigenous laws and gender.

In this article, I have attempted to outline the ways and means in which I entered my training and understanding as an Indigenous legal scholar. This took me to a Canadian law school, an American law school, and finally to an Indigenous community that took responsibility for educating me in Indigenous lands, laws, and legal orders. The struggles I have detailed here and the stories I have provided serve a few purposes. The first is one that I hope assists Indigenous students attending law school. The purpose in writing this article is to let you know that you do not have to lose the incredibly challenging and beautiful stuff put in us by birth. We come from critical Indigenous legal traditions that allow us to critique, question, and build something better. Canadian law can make our processes of learning this and our substantive knowledge feel like marginalized information. That gut feeling you have that tells you something is not fair is very likely precisely right. Pay attention to it, hone it, and listen to it. It is a part of your critical consciousness, and it is going to make you a very good thinker and potentially an excellent lawyer. The second purpose for, and rationale behind, publishing this article is to provide an understanding for non-Indigenous students about the existence of, and need to ask about, Indigenous laws and legal orders in your legal studies. We are all being short-changed if we do not investigate, inquire, and require discussion. This article also serves as a reminder for faculty and staff at law schools that there is an obligation to address with seriousness and studiousness the reality of Indigenous laws and legal orders in Canada as a multi-juridical entity. Many of our students know this and are living this—we need to catch up with, be informed about, and be respectful of them. The final reason I wrote this piece is to introduce the notion of the praxis of critical Indigenous legal theory. Having taught the course content to a generation of law students and now having had feedback from some of the practitioners, I think that understanding Indigenous law as a praxis/practice, and not just a theory, requires more of us as educators, students, and practitioners.

The paper discusses in what way the full jurisdiction in criminal justice cooperation matters – since 1 December 2014 – will affect the work of the ECJ in the field of judicial cooperation in criminal matters. Moreover in the light of the ECJ's recent case law on the European Arrest Warrant the paper analyses how the principle of mutual recognition in criminal matters is being implemented and whether this progress has been at the expense of lowering the level of protection of fundamental rights in criminal proceedings. Such analysis will help to identify what has been the role of the ECJ in the realm of judicial cooperation in criminal matters and what its future role should be: overstressing assumed mutual trust, without strengthening the fundamental rights perspective, may end up in general distrust.

This essay examines tensions between American and Canadian legal and journalistic cultures through a discussion of Canada's best known serial murder case. The Internet and the rapid global dissemination of media texts have enabled American news reports to cross the border with increasing ease, challenging more conservative Canadian laws about freedom of expression and a criminal defendant's right to fair trial. The most recent case to test these issues involves the prosecution of Robert William Pickton for the sexual murders of 26 women in British Columbia, details of which have been under a court-sanctioned since 2002. American law, in contrast to Canadian law, allows journalists who cover criminal justice in the United States to operate in an environment of almost total freedom. American news organizations can publish or broadcast virtually any facts about a criminal case, regardless of whether the publicity could bias potential jurors or otherwise influence the administration of justice. (1) Potentially prejudicial facts of the kind that are routinely found in American crime news (e.g., information about defendants' prior criminal records, statements suspects make to police, the nature of evidence discussed at pretrial hearings (2)) are those most likely to run afoul of Canadian laws that limit what may be published or broadcast about pending criminal cases. These opposing approaches to pretrial publicity came into conflict early in the case against Pickton when American journalists at major news organizations, such as the Seattle Times, breached the publication ban, leading the court to issue the first Canadian ban on the reporting of Internet addresses in relation to the trial. This ban exceeds the normal Criminal Code limits, and in effect prevents media from steering their audiences to offending websites. (3) The court's attempt to prevent Internet media reports of the preliminary inquiry from coming into Canada is illustrative of concern about transnational media content, particularly in the wake of a 2005 political scandal and judicial inquiry involving a former prime minister in which an American blog published banned information that many Canadians were able to read via the Internet. (4) Most empirical studies on pretrial publicity in North America have focused on the impact of media reportage on juries, and the scholarly consensus is that it does not have strong effects on trial outcomes. (5) There have been no systematic studies of how pretrial publicity from the United States about Canadian cases might affect Canadians, though there has been much speculation about the issue, particularly in the wake of the Paul Bernardo--Karla Homolka prosecutions for the rape and murder of two teenage girls in the mid-1990s. (6) Comparative studies of international crime coverage have generally focused on the nature of the content with respect to the crime or criminal, leaving the cultural or legal context of the journalists largely undeveloped. (7) In addition, relatively few Canadian criminal cases have garnered intense media interest south of the border, with only five homicide prosecutions over the past 50 years generating legal skirmishes between Canadian judges and American journalists over pretrial publicity. Our research adds to the literature by examining the culturally specific legal and journalistic norms surrounding crime and pretrial coverage over a 50-year period, and in particular, how these elements play out in an age of increasingly global media flows. Our study relies on the media coverage and court documents related to five cases, which range from the slaying of a young woman in Ontario in the 1950s that was covered by American true crime magazines, to one of the most heinous homicides in Canadian history, the Bernardo-Homolka killings, ending with the Pickton trial. We argue that despite heightened fears of the possible erosion of the Canadian criminal justice system by the encroachment of American legal norms via the Internet, cross-border crime content appears to be a negotiation between legal and journalistic norms in which American journalists have generally sought accommodation over the long term rather than conflict. …

Indigenous law and governance systems across British Columbia have experienced tremendous hardship and transformation since first contact. Colonial systems have stifled Indigenous cultural governance structures, compromising Indigenous communities’ centuries-old methods of sustainable land and resource management through stewardship. Despite the acknowledged importance of Indigenous stewardship in natural resource management initiatives, land-based decision making within British Columbia continues to design and implement processes and mechanisms that stifle Indigenous law and governance and misrepresent Indigenous values. This article uses document analysis of 123 forestry-centric government-to-government Forest Consultation and Revenue Sharing Agreements within British Columbia to explore how Two-Eyed Seeing manifests through the opportunity to uphold Indigenous law and governance in these agreements. Focusing on the use of Indigenous language, cultural values, and hereditary leadership, nine of the agreements studied showed signs of Indigenous law and governance in their terms. These findings highlight the need for a path forward that is inclusive and empowers Indigenous law and governance in natural resource decision making to ensure enhanced stewardship opportunities for future generations.

This article examines the use of literary genre in Supreme Court of Canada (SCC) decisions on Indigenous land rights (Aboriginal title) and in Métis playwright Marie Clements’ 2003 play Burning Vision. I argue that legal decisions on Indigenous rights in Canada take on the features of specific literary genres, and that the genre of these decisions changes over time in response to broader sociopolitical shifts. In response to Section 35(1) of the 1982 Constitution Act, Aboriginal title decisions took on the structural features of comedy, a genre in which reconciliation is facilitated by the disclosure of previously hidden family relationships. This can be seen in Delgamuukw v. British Columbia (1997), a decision wherein the SCC reconciles the uneasy coexistence of two legal systems (Indigenous and common law) within the same national space by making these systems members of the same legal family. Clements’ play critiques this form of genealogical reconciliation by demonstrating how Indigenous law is forced to join the “family” of settler-colonial common law, and by exposing the violence that is elided through such processes of genealogical reconciliation. This article contributes to critical conversations about the relationship between law and genre and about the legal recognition of Indigenous rights.

Questions relating to the disintegration and destruction of legal systems or what H.L.A. Hart called the 'pathology of legal systems' are extremely difficult to confront as questions of law. When political allegiance to one legal system begins to erode, the natural tendency of judges may be to struggle to save the system from collapse, thereby putting at risk the chance of orderly transition to succeeding nascent legal systems. However, just as it is best for a natural person to order his or her affairs and write a will while of sound mind, perhaps a legal system even one with promise and potential remaining should likewise plan for its orderly, and lawful, demise. Indeed, by confronting the unthinkable, perhaps it can (unlike a natural person contemplating eventual death) achieve partial survival, so that in the aftermath of its dismemberment a remnant of the system remains worthy of allegiance from at least some of its citizens. This was, in essence, the task that the Supreme Court of Canada accepted in Reference re the Secession of Quebec from Canada.2 In what the Chief Justice of Canada, Antonio Lamer, described as the most important judgment in the Court's history,3 the nine Supreme Court justices ruled unanimously that the Dominion of Canada is divisible and (by implication) destructible, and that there are legal rules governing such division and destruction. The case arose when the federal government of Canada invoked the advisory jurisdiction of the Court by referring to it three questions, namely: (1) Can the government or legislature of the province of Quebec effect the secession of Quebec from Canada unilaterally under Canadian law? (2) Can the government or legislature of Quebec effect secession unilaterally under international law? (3) If Canadian and international law conflict on this point, which prevails?4 Thus, the Court confronted the same basic legal issue as did the Judicial Committee of the Privy Council in the famous case of Madzimbamuto v LardnerBurke5 with the critical difference that, in that case, the Rhodesian government had

In criminal matters, the European Union (EU) managed to establish several mechanisms to strengthen and facilitate judicial cooperation over the years but does not clearly nor uniformly define the concepts of ‘criminal matters’, ‘criminal proceedings’, ‘criminal responsibility’ and so on in any of the cooperation instruments themselves. It is however important to know as to what the EU understands by the notion ‘criminal’ because Member States have developed specific rules in response to delinquent behaviour of minors, which are somewhat different from ‘general’ criminal law. The question arises whether the existing cooperation mechanisms only apply to ‘adult’ criminal matters or also include youth justice matters. This article therefore aims to find out whether a consistent and shared view exists on the meaning of the concept ‘criminal’ and to subsequently clarify to what extent the existing EU instruments in criminal matters also apply to juvenile offenders.

Over the past 600 years, African states have been subjected to powerful influences of globalisation such as the slave trade, colonialism, transcultural exchange, and the law and development movement. These influences, which reflect in transplanted European laws masquerading as state laws, are steadily eroding the identity of indigenous African laws. So, to what extent do customary courts in Nigeria reflect indigenous law identity? This unexplored question is significant for scholarly and policy perceptions of legal pluralism in post-colonial states. These perceptions tend to favour conflict of laws, rather than the dialogue occurring between indigenous laws and state laws in intersectional social fields. Informed by case analysis, interviews, and archival searches, this article presents Nigerian customary courts as Anglicised courts pretending to be indigenous courts. It argues that customary courts illustrate indigenous law’s adaptation to socioeconomic changes. In exposing state laws as a key component of these changes, the article highlights the ways customary court actors engender behavioural changes that reveal the adaptive nature of normative interaction in post-colonial societies. It suggests that the adaptive interface of state laws and indigenous laws offers a theoretical platform for legal integration in sub-Saharan Africa.

Since the implementation of the "one country, two systems" policy and the return of Hong Kong and Macau, China has become a region with multiple legal jurisdictions, inevitably leading to inter-regional legal conflicts. Consequently, the development of unified inter-jurisdictional conflict law in China has become an imperative trend. Considering the potential future unification of Taiwan, such conflicts are expected to become even more complex. Hence, perfecting China's inter-jurisdictional conflict law has become a major issue for the Chinese conflict law community in the present and the foreseeable future. This paper offers a brief analysis and recommendations regarding the inter-jurisdictional legal conflicts existing within the "four legal domains" of China. Through an analysis of the concept of conflict law, the paper extends to the concept of China's inter-jurisdictional conflict law. Additionally, the paper highlights the issues present within the four legal domains and proposes corresponding solutions. Therefore, this paper holds significant practical significance for resolving inter-jurisdictional legal conflicts within the "four legal domains" of China.

In this paper, I explore the complexities associated with sexual assault in Canadian law and society by analyzing significant or sensationalized sexual assault cases, including: the leading Supreme Court of Canada case R v Ewanchuk (1999) on sexual assault and implied consent; the murder trial of British Columbia serial killer Robert Picton (2003); and assaults occurring on the campus of York University (Toronto). The concept of Implied consent is central to the assumptions underpinning many rape myths that blame victims for the violent actions of perpetrators (e.g., a woman who is deemed to be dressed inappropriately is held to be responsible, in some way, for her own assault). I situate my arguments within feminist socio-legal studies and contend that rape myths unduly sanction discrimination against victims. Hegemonic masculinity, which is based on a mythical norm, emerges as problematic in (re)constructing sexual violence. Hegemonic femininity also engages in a process of “othering,” which locates specific women as more “rapable” than others. Moreover, these gendered constructions are heightened by and interconnected with race and class inequalities. The use of sexual assault litigation as a tool for justice is debatable, at best, given the issue of reasonable doubt in criminal law and the re-traumatization of victims. Both Canadian law and society can be implicated in the problems associated with the trying of sexual assault cases, problems which cannot be adequately addressed without a deeper, contextualized analysis of discrimination as well as further activism.

<p>While colonial imposition of the Canadian legal order has undermined Indigenous law, creating gaps and sometimes distortions, Indigenous peoples have taken up the challenge of rebuilding their laws, governance, and economies. Indigenous conceptions of land and property are central to this project.</p> <p><em>Creating Indigenous Property</em> identifies how contemporary Indigenous conceptions of property are rooted in and informed by their societally specific norms, meanings, and ethics. Through detailed analysis, the authors illustrate that unexamined and unresolved contradictions between the historic and the present have created powerful competing versions of Indigenous law, legal authorities, and practices that reverberate through Indigenous communities. They have identified the contradictions and conflicts within Indigenous communities about relationships to land and non-human life forms, about responsibilities to one another, about environmental decisions, and about wealth distribution. <em>Creating Indigenous Property</em> contributes to identifying the way that Indigenous discourses, processes, and institutions can empower the use of Indigenous law.</p> <p>The book explores different questions generated by these dynamics, including: Where is the public/private divide in Indigenous and Canadian law, and why should it matter? How do land and property shape local economies? Whose voices are heard in debates over property and why are certain voices missing? How does gender matter to the conceptualization of property and the Indigenous legal imagination? What is the role and promise of Indigenous law in negotiating new relationships between Indigenous peoples and Canada? In grappling with these questions, readers will join the authors in exploring the conditions under which Canadian and Indigenous legal orders can productively co-exist.</p>