With or Without You: First Nations Law (in Canada)




Borrows, John

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McGill Law Journal


Much of the history of Canadian law on Aboriginal rights can be viewed as a contest between the principles of First Nations, English, American, and international legal regimes. As a result, Fist Nations law has often been overlooked by Canadian courts because of its perceived incompatibility with and inferiority to the Common law. The author criticizes this approach to the development of Aboriginal rights jurisprudence as dismissive of the continuing presence of Aboriginal law. He urges Canadian courts to make explicit use of First Nations law in the resolution of Aboriginal rights disputes. Part I reviews Canadian caselaw to demonstrate that courts have already implicitly recognized the legitimacy of First Nations law in the settlement of disputes over Aboriginal issues. The Supreme Court of Canada, for example, has acknowledged the continuing existence of Frst Nations principles despite the strong influence of European-based law. In Part II, the author attempts to demonstrate the validity and flexibility of First Nations law (particularly with regard to environmental law) to illustrate how it can be articulated in a manner that can be recognized by non-Aboriginals and by the courts as law. Finally, the author concludes that the driving force behind the further development of Aboriginal rights jurisprudence in Canadian law is in the hands of First Nations and non-Aboriginals alike. He contends that the answer lies partly in better education and partly in further and more explicit use of First Nations law by lawyers and courts, both in Canada and abroad. In this way, Aboriginal law in Canada will be recognized for what it is: a dynamic, relevant, and integral part of Canadian law.




Borrows, John. 1996,"With or Without You: First Nations' Law (in Canada)." McGill Law Journal. Vol. 41 Issue 3, pp. 629-665