John Borrows – On Mindfulness, and Indigenous Law

John Borrows is a member of RAVEN’s legal advisory panel and is co-founder of the joint Common Law and Indigenous Law program at the University of Victoria, the first of its kind. He spoke as part of Sorrento Centre’s Mindfulness and Indigenous Law Conference, sharing beautiful stories and teachings on Indigenous law from his Chippewan of the Nawash Nation and ancestors.

Transcript of video:
Dr. John Borrows:

Professor Borrows, B.A., M.A., J.D., LL.M. (Toronto), Ph.D. (Osgoode Hall Law School), is Canada Research Chair in Indigenous Law at the University of Victoria Law School.

His publications include, Recovering Canada; The Resurgence of Indigenous Law (Donald Smiley Award for the best book in Canadian Political Science, 2002), Canada’s Indigenous Constitution (Canadian Law and Society Best Book Award 2011), Drawing Out Law: A Spirit’s Guide (2010), Freedom and Indigenous Constitutionalism (Donald Smiley Award for the best book in Canadian Political Science, 2016), The Right Relationship (with Michael Coyle, ed.), Resurgence and Reconciliation (with Michael Asch, Jim Tully, eds.), Law’s Indigenous Ethics (NAISA best subsequent book), all from the University of Toronto Press.

He is the 2017 Killam Prize winner in Social Sciences and the 2019 Molson Prize Winner from the Canada Council for the Arts, the 2020 Governor General’s Innovation Award, and the 2021 Canadian Bar Association President’s Award winner.  He was appointed as an Officer of the Order of Canada in 2020. John is a member of the Chippewa of the Nawash First Nation in Ontario, Canada.

This beautiful welcome, with prayer and drumming, fills me. I’m also a person that likes to hand drum. And so to feel that rhythm and to feel the heartbeat of our mother, the Earth, as it resonates through that drum is something that is enabling us to be mindful and to be connected to those larger rhythms of life that circulate through creation and that circulate through our bodies.

And that drum is a way to remind ourselves of bringing ourselves into alignment with the heartbeat of our mother, the Earth, and the heartbeat that we share in our bodies as we have this flow when we’re born into time. I’m also so grateful to see the sun shine today as I look up and I lifted my face to the sky.

I felt gratitude for the other rhythms that are there, that help us to govern our days and to understand the limit in our short lifespan and limitless coexistence of that power that life ends upon as the sun rises.

And to hear the birds and feel the wind and sugar a bit is to also be alive in this brief moment of celebration that we can greet the sun once again. I also know many of us carry challenges and burdens and sorrows and struggles.

And to acknowledge that is a part of what we do when we’re together, because we can help one another with those struggles, with those sorrows. It is a part of the human to understand our frailties as well as our possibilities and to see that we can be lifted by one another, lifted by the sun and the wind and the waves and the birds and the animals and the insects and the plants.

That’s a part of what it means to be alive today in this place of mindfulness around Indigenous law. Indigenous law is an encouragement to develop respectful relations with more than human and human world and beyond encouragement. And that is definitely a part of Indigenous law. It’s invitational, it’s encouraging.

It’s also something that humans do, which is look to and create and identify standards, principles, processes, criteria, authority, yardsticks, benchmarks, traditions, precedent to allow us to make decisions and resolve our disputes.

In other words, law is something we do as humans. It’s not just something that a court does or a police officer or a legislature. It’s something that’s an activity in our language. Law is a verb. And if law is a verb, it’s something that we participate in with one another together.

And understanding what those standards, principles, authority, criteria, measures, signposts, guideposts, traditions, precedence, authorities might be is a process of deliberating with one another. It’s a process of identifying what we see as necessary in the natural world to be able to take our cues, to live well and helpfully with one another.

Some of our laws are sacred and come from a time beyond time and have been passed down to us through millennia. Some of those laws are customary. They’re the implicit ways that we interact with one another. They’re unspoken, but they’re the patterns by which, if we participate in those patterns in a positive way, we’re incentivized to continue to act in a good way because we receive many of the goodies that we have.

Friendships, the leadership, the ability to sustain ourselves flows from custom, from living in patterns that incentivize fiscal conduct. And of course, if we’re not living in accordance with those patterns, there’s also disincentives. You might not find yourself invited to or participating in quite the same way that others could who are aligned with these broader patterns.

And then, of course, some of our laws are declarative, right? They are do’s and don’ts. They’re don’t walk on this glacier or stop at a stop sign. They are codes, and they can be bylaws and legislation. There are things that people are what we call positivistic in the Commonwealth tradition. They’re put out there to guide us in their commandlike way.

And in thinking about indigenous law, with all of those different sources, we can appreciate again this idea that it’s something we do because we have choices about how we view the sacred, how we learn from the land, how we interact with one another in our customary interactions, how we deliberate and persuade and find consensus and respectfully reason with one another as a source of law.

Then, of course, if there’s something we don’t like in our law that’s declared we can change it because again, it’s something that we do. And so for me, law is measuring in relationship to patterns.

So part of what we have to decide is what are our measurement criteria, what are the standards against which we will interact with one another and what are the patterns that we’re going to be measuring those standards against. And so to think about law and this light is to understand the beauty of human agency and to see that we do have the opportunity to take care of one another.

And it’s a wonderful thing to understand that we all have vulnerabilities and we all have strengths, and we can all help one another through those vulnerabilities and those strengths. There’s one 8 million indigenous peoples in this country and there’s eleven different language families. And within those language families, there’s over 50 different languages. And so there are many different ways of practicing indigenous law as you go from coast to coast to coast.

But one thing that I find very common amongst them is the respect for the land, the relationship to the land, how we find our patterns for living from the land. And so one thing I want to leave with you is the idea that our law professors are the animals and the birds and the plants and the trees and the winds and the sun and the waves and the fire.

That is, we have this methodology I’m going to express this way. In Anishinaabewan law is to point towards and take direction from. We draw our analogies from our elders, our teachers, our professors, who are those that preceded us as human beings. The trees and the rocks and the waves and the winds and the animals and the plants and the birds, right?

They are elders, they are teachers about what patterns are appropriate. We can analogize those and then we can also, of course, distinguish ourselves from those things that we find different in the way that we’re living. And that process of analogy and distinguishing learning from the land is a process that’s encoded in the language and it’s found in the stories. Principles are found in those stories.

The processes are found in those stories and in the songs. Law can be danced, as someone dances to life. One of those stories, particularly, been a feasting tradition on the coast. You don blankets and masks, and you tell about what your standards, principles, authority, criteria, measures, fine post guideposts, principles, processes for making decisions and resolving disputes.

These are different from coast to coast to coast amongst Indigenous Peoples in terms of how we might enact our law, but we’re all relating to the land. And so if you want to read about our law, you read the Earth, our archive of law, our casebook of law, our text, our statutes are found in the more-than-human world.

That’s our archive. And so if someone clearcuts or someone extirpates an animal, not only is it a great loss for the diversity of the world, it’s a great loss for all the other animals who are practicing law in relationship to the trees and the rocks and the other animals. And of course, that’s a loss to us as well, because it’s like taking one of our books of code and burning it or depositing it somewhere where it can’t be accessed.

So I’m grateful for this process of reasoning, observation that’s in language, dance and song and masks and story so that we can learn, be mindful about our more than human relations, and then in the process, be more mindful ourselves. Because if law has this kind of life, it’s meant to be carried inside us, and to carry law inside us is a responsibility that we can help one another with.

I want to tell a story from the Anishinaabe communities that helped illustrate this idea of mindfulness as we connect the natural human and the more than human world.

The story that I heard from Simon Kytwayhat: he’s Anishinaabe Saulteaux from the prairies, and he’s from the Makwa Sahgaiehcan First Nation, and he taught at the Joe Duquette High School in Saskatoon, which was an urban high school for Indigenous kids. And I was working with the Treaty Elders of Saskatchewan for four years with Dene and Saulteaux and Cree and Dakota people learning about their understanding of those numbered treaties on the prairies.

And Simon told this story about our responsibilities as humans as we’re relating to the more-than-human world, our responsibilities to be mindful as we carry law inside. So we talked about the time when the Creator came amongst a council of animals and said, there are these new beings I want to set amongst you, but they’re going to be very pitiful.

They’re not going to have the protection against the elements that you have, and they’re not going to be able to feed themselves directly in quite the same way that you can. And they’re going to have difficulty learning how to live in this space: but these ones can bring a great gift.

And so the animals were curious and wanted to hear more about these Two Leggeds that were going to be placed amongst them if they would be received invited by these animals. And so they started questioning the crater about what the qualities of these Two Leggeds might be and what they might do to help and what they might do to protect themselves from those who are often or sometimes foolish.

The conversation was joined by all the council of animals asking about these new Two Leggeds and all their various facets. And as this council proceeded, there was a recognition that they would have great needs and there was a determination to help these ones by providing clothing, by providing food, by providing teaching and providing encouragement by the way that they live.

They also recognize the cost that would be a part of receiving these new ones amongst them. And they wanted to think about and receive some opportunity to work in reciprocity with those Two Leggeds that were coming amongst them.

And so this council went on for some time, talking about all the various aspects of these new arrivals until it was eventually agreed that these new ones could join. But in joining, there would be things that they could learn, but also dangers that the rest would face. But there was also this point of gift. And the Creator said, “okay, you’ve agreed to have these new ones come amongst you.”

“I want to give them a gift so that when they interact with you, they will appreciate what you’re doing to clothe them and to feed them and to teach them and to encourage them, to inspire them. But I want to put that gift in some place where they’ll appreciate what it is that they are receiving by this gift.”

Because, you know, sometimes when you receive a gift and it’s not worked for, you might not value it because it’s not understood the work and the power that’s a part of that gift. And so the Creator wanted these Two Leggeds to be able to work for this gift. So the council was asked, “where should this gift be placed?” And after some discussion, eventually the buffalo spoke up, and said, “I know where we can put it.”

“Right in the middle of the vast and broad grasslands! They are so large and expansive that surely it will be difficult for those Two Legged to find that power, that gift there.” And the animals, knowing the stretch of those grasslands, felt encouraged by this. This was a good possibility.

They looked to the Creator and the Creator said, “you know, those Two Leggeds are going to find themselves all over those grasslands, and they will stumble across that gift too easily. They won’t appreciate it, and therefore it won’t have the value and won’t do the work that needs to do in order to bring the gift.”

The council understood and they talked some more amongst one another.

And eventually the pike – the long fish poked its head up from the river, and said, “I know where to put it. We can place that in the bottom of our deepest lakes. Those places are dark and distant and intricate in the way that they’re laid out under the water. Surely that’s going to be difficult for the Two Leggeds to find it there.”

The animals again were encouraged by what they heard and they turned to the Creator. The Creator said “those Two Leggeds are going to find themselves in the bottom of all those lakes. They’re going to understand too easily; they’re going to stumble upon it without much work and they’re not going to appreciate it because of the ease of finding at the bottom of the lakes.”

So the animals go into council again, trying to figure out what it is they could do to find these possibilities with this gift. And then the eagle speaks up. “I know we can take that gift and put it on the face of our grandmother, the Moon. Surely that’s going to be difficult for them to find there.”

They turn back to the Creator with hope and again the answer comes. “Those humans are going to find their way, even to our grandmother of the Moon. It’s going to be too easy for them to go there. They’re not going to appreciate it. They’re not going to understand the work that’s required in order to pick up that gift and have it be what’s intended.”

So the council is getting discouraged at this point.

And out of the ground comes this little mole. He said, “Excuse me, excuse me, I have something to say.” And the rest of the council were angry, thinking, “what does this little one think can be offered when all of these great animals have not been able to find an answer to this question?” And so they were dismissing the mole, and they were about to put it out of council. And then the Creator spoke up and said, “give a second.”

“Sometimes it’s those that are smallest amongst us that carry the greatest insight. And look where this mole lives. Lives next to the heart of our mother, the Earth, as she’s under the ground there, always making her way close to that wisdom.” So the council understood what was said and they turned to the mole. And the mole said, “I know where that gift can be put.”

“It can be put inside them.” And the council was confused. What does this mean? And the mole spoke and the Creator echoed what the mole said, which is, “if we put that gift inside them, that’s a hard place to look.”

“And to put that gift inside them is to recognize that looking there is a greater distance than going to the vast grasslands. It’s a greater distance than going to the deepest oceans and waters. It’s a greater distance than going to our grandmother, the moon.”

“And when humans do the work looking there, they will finally appreciate what that gift is. And then the point was made. The greatest distance a human will ever travel is the distance between their mind and their heart.”

“And when humans can travel that distance, they will discover the gift that will connect them to you and the rest of creations and to me, as the Creator, to be able to do the work that that gift can do in the world, to bring all that’s possible.”

And he said that gift is the gift of truth and justice.

So finding that is part of what Anishinaabe people search for in trying to live by our laws, our standards, principles, authority, criteria, measures, signposts, guideposts, processes, principles, authority, tradition, precedent that’s in land and language and story and song and dance that we do together.

And as we do that together, there’s hope for us, and there’s hope for the more than human world as we see ourselves there. And I’m grateful for this time we have together over this day to explore these themes, to be mindful, to be respectful of one another, and to get different angles of vision as we hear from different friends and speakers, and as you visit with one another.

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