John Borrows and
Michael Coyle, editors. The Right
Relationship: Reimagining the Implementation of Historical Treaties. University of Toronto Press, 2017. 428 pp. ISBN 978-1442630215
https://utorontopress.com/us/the-right-relationship-2
A recent pattern in scholarly books focused on Indigenous law and
policy is for the author (or authors) to take a side in a key debate that
largely structures the field. On the one hand, powerful arguments are regularly
made that decolonization and the power of self-determination for Indigenous
communities must be pursued primarily by fully decoupling from western legal
systems and norms. On the other side, one finds representatives of a more legal
realist and reformist tradition, who point to the flexibility of legal systems
and stress the possibility for change to be effected from within as well as
outside of those norms and structures. To his credit, throughout his career Anishinaabe legal scholar John Borrows has managed to avoid the
limitations of this binary. Instead, his work has continually highlighted the
ways that the legal nomos (past and present) of First Nations peoples and the
constitutional structure of Canada have the potential to become mutually
transformative. In The Right Relationship,
Borrows and co-editor University of Western Ontario
law professor Michael Coyle have brought together a range of essays that embody
that same spirit of creative legal thinking. Focusing specifically on the
ongoing importance of treaty relationships between First Nations tribes and the
national and regional governments of Canada, the book's contributors frankly,
realistically, and sometimes hopefully assess the potential for treaty law to
become a central tool for upending the repressive apparatus of settler
colonialism in the modern state.
The Right
Relationship is divided into three sections, the first of which highlights the
ways that a historically-informed perspective on
treaty negotiations and colonial history, dating back to the Eighteenth Century,
should significantly alter the way that treaty relations today are understood
and pursued. Borrows's essay on "Canada's
Colonial Constitution" draws attention to the ways that the constitutional
order and narratives of the Canadian state have mis-interpreted treaty history and
forced First Nations communities into primary political relationships with
provincial governments, as opposed to with the central government in Ottawa.
This shoehorning of tribal peoples into the federalist structures of modern
Canada has buttressed colonialism by rendering it exceptionally difficult for
tribal people to navigate overlapping jurisdictions and to assert the kind of
nation-to-nation relationships clearly intended in the original moment of
treaty-making. Michael Coyle's contribution, "As Long as the Sun Sets," considers
problems arising in the ongoing interpretation of treaty law in the Canadian
Courts, an inevitable process owing to constantly changing contexts in which
treaty provisions much be understood and enforced. Similar to Borrows, Coyle
argues that a historical perspective should inform contemporary practice. In
particular, he suggests that the historical record clearly shows that all
parties to colonial-era treaty making understood themselves not to be engaged
into the creation of temporally bounded executable contracts, but rather in the
creation of on-going diplomatic structures to allow for negotiated co-existence
and mutual support—the kind of "right relationship" to which the book
title alludes. A key problem, Coyle notes, is that the Canadian courts have
employed a more static contractual-model in interpreting historical treaties,
which is both a detriment to tribal communities and a source of ongoing
political instability in the Canadian state. The third essay in this opening
section, Kent McNeil's "Indigenous Rights Litigation, Legal History, and the
Role of Experts," highlights one of the many challenges standing in the way of
Coyle's and Borrows's more copious understanding of Canada's legal heritage.
Looking at actual case law and trial records, McNeil documents the ways that
the court system relies in problematic ways on the testimony of expert
witnesses (professional historians) with flawed or limited understandings of
the legal issues at hand, allowing those experts to comment well outside of
their actual expertise while also invalidating and silencing the voices of Indigenous
litigants. The essay's specific examples of testimony by University of Cambridge
historian Paul McHugh are persuasive accounts of the ways that bias is
structurally embedded in the settler-colonial system. In providing that
perspective, McNeil offers an important corrective for any reader who comes
away from the first two essays with an overly optimistic view of the
possibilities for changing the ways that treaties are interpreted by the
Canadian state. The problems of "relationship" are clearly at least as much
political as they are strictly jurisprudential.
This emphasis on the interplay of historical, legal, and political
discourses and practices I have been tracing continues to emerge throughout the
collection, both in the remaining essays in Part I (by Julie Jai, Francesca
Allodi-Ross, and Sara Graben and Matthew Mehaffey) and in the final two
sections. In Part II, "The Role of Indigenous Legal Orders," contributors Mark
D. Walters, Aaron Mills, Heidi Kiiwetinepinesiik Stark, and Sarah Morales all
highlight the vital need for Indigenous perspectives to be examined and
understood in order to actualize the kinds of treaty relationships that might be able to achieve a true "reconciliation"
that goes beyond the current, often cynical papering over of ongoing settler
colonialism. A major theme in this section is the need to complicate western
legal understandings of "rights" as a form of individual property, complicating
that notion through Indigenous ideas like bimaadiziwin
(the Anishinaabe concept of a "good life" predicated on harmony between
individuals, communities, and the larger world of natural "relations") or ezhi-ogimaawaadizid (the Anishinaabe
imperative for those in positions of leadership to act in ways that recognize
those for whom they are responsible). In Part III "'Fitting
the Forum to the Fuss,'" Jacinta Ruru, Jean Leclair, Sara Seck, and Shin Imai
focus their critical attention on the sites of interpretation and
implementation of treaty law. Comparative perspectives are applied here to
highlight the value of looking outside of current norms to find positive
alternatives. Ruru, for example, considers the establishment in 2014 of a new
forum for the adjudication of treaty remedies in New Zealand as a useful model
for consideration in other contexts. Seck's essay explores some of the ways
that norms from international law might be usefully leveraged in domestic legal
contexts. But always running
throughout the collection are the kinds of cautionary notes represented in
LeClair's essay on "The Potentialities and Limits of Adjudication," insisting
that we not lose sight of the fact that all legal interpretation takes place
within the context of structures of power. LeClair is able to show, by
reference to only a handful of recently-decided cases,
that a clear-eyed and flexible strategy in litigation must be an essential part
of the ongoing work of decolonization.
While the overview I have offered here might seem to suggest that The Right Relationship is a book that
will only be of interest to legal scholars or individuals working in public
policy, nothing could be further from the truth. While the contributors are all
legal experts, the essays are written to be accessible to general readers. Each
chapter opens with a helpful overview of the arguments being made, and the
historical and legal context of each argument is presented fully within
individual pieces. The discussions of Indigenous understandings of treaties and
treaty making and the intricacies of tribal-centric political thought
(particularly Anishinaabe thought) are also exceptionally rich. Take as whole,
then, the arguments presented in this volume are both extremely smart and
balanced. They combine a realistic sense of the challenges of decolonization
with a deep understanding of the ongoing vitality of Indigenous law ways. In
this respect, Borrows and Coyle have gathered together a group of voices that
represent precisely the kind of well-informed, tough-minded optimism needed to
underpin effective activism and advocacy.
David J Carlson, California State University San Bernardino