The metaphor of Justice McEachern - the trial judge in the famous Aboriginal title case Delgamuukw—and his “tin ear” is useful in describing the disconnect between settler law and Aboriginal ways of life. We have seen this tin ear time and again in our legal system, whether it’s the inability of Canadian evidentiary laws to accept oral Indigenous evidence or the difficulty judges have in applying Gladue principles to the sentencing of Aboriginal offenders. We have seen it in the reluctance of courts to recognize Aboriginal spirituality under the Charter and in the narrow framing of section 35 of the Constitution, a framing that has only reaffirmed the settler belief that Indigenous peoples are “‘once-upon-a-time’ groups that can only occupy a very narrow space in contemporary democracies.” John Borrows new book, Freedom & Indigenous Constitutionalism, explores the quest for freedom (dibenindizowin) and a good life (mino-bimaadiziwin) for Indigenous peoples in Canada, and what stands in the way of achieving it. As Borrows explains, freedom is not just the “absence of coercion or constraint.” It is the ability, alongside others, to “choose, create, resist, reject, and change laws and policies that affect your life.” Unsurprisingly, one of the main barriers is the law’s continued inability to attune itself to Indigenous values, wishes, and beliefs. At every turn, Canadian-European legal traditions have remained inattentive— and sometimes even indifferent—when Indigenous peoples have fought for freedom. We once again see the tin ear of the law. Borrows’ book is a careful call to arms; a thoughtful manifesto on how to resist, litigate, protest, and educate in search of a space where Indigenous peoples may live freely and pursue a good life most in line with their own dreams and aspirations.
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"Freedom & Indigenous Constitutionalism, by John Borrows."
Osgoode Hall Law Journal