Legislative Intent and Ordinary Meaning

LINDSAY BORROWS is an Assistant Professor at Queen’s University, Faculty of Law, where she teaches special topics in Indigenous law. She is Anishinaabe and a member of the Chippewas of Nawash First Nation. Lindsay has worked as a lawyer and researcher at the Indigenous Law Research Unit (University of Victoria Faculty of Law), and as a staff lawyer at West Coast Environmental Law, working with Indigenous communities revitalizing their own laws. She is the author of Otter’s Journey Through Indigenous Language and Law (UBC Press, 2018).

Let’s start with the history of your own relationship to the topic of law and language. How did you become interested in the revitalization of Indigenous languages and laws?

I got interested in this intersection as a child, because of my family — I think for a lot of us our interests flow from our family, either because we’re distinguishing ourselves from them, or because we’re forming close relationships with them. And so, I remember as a child, my dad was learning Anishinaabemowin — the Indigenous language from around the Great Lakes region — and he would come home after Anishinaabe language classes and he would have all of his books spread in front of him and we would practice it together. So initially I was interested in language. Law, as a kid, is a little bit more inaccessible and a little bit more abstract.

In my undergrad I took a lot of linguistics courses and when I went to New Zealand, to the University of Auckland, and studied te reo Māori, the Māori language, I was really impressed with what they were up to. I began to see new connections to what we were doing around Anishinaabe language revitalization. The law connection came out later, when I started law school. I was like, it’s so similar, learning an endangered language to learning an endangered legal tradition.

In your book, describing the history of colonialism, you write: “As England’s language and laws came into the territory, Anishinaabe language and laws were submerged.” Could you talk about what that submergence looks like and the ways languages and laws are reemerging from it?

For me, an important part of what the submersion looks like is, initially, when people came from England, came from France, that initial relational period was marked by people learning each other’s languages. Settlers were coming, and their ability to trade and survive required learning Indigenous languages. Whether you were a trader or a missionary, you had incentives for learning the language. Some of those missionaries were some of the foremost linguists of Indigenous languages. And likewise, Indigenous people were learning English and French, and my sense is that this would have just been another normal thing to do. Indigenous people were always learning each other’s languages, to engage in trade, and this would have just been a new nation. That intersocietal nature was always there.

And so when things started to really shift was around the 1830s, when the first residential school was set up, before Canada was even a thing. Initially those schools were run by the churches, with an objective of “let’s Christianize, let’s bring people in to civilized society”, and over those next 50 years until the 1880s the church was really in charge. Then in the 1880’s, the federal government passed a policy around residential schools and took up the leadership role in that project. Indigenous languages and laws had their deepest challenges in that period of time. And it wasn’t until 1997 that the last residential school was closed. All of these generations not being able to learn their language — it wasn’t just residential school, it was Indian day schools too.

What I find so striking about this is how education is an enforcement mechanism for having tools to structure your life by — and how easy it is to intercept. It’s happening right now in Ukraine, where over 20,000 children have been taken by Russia, are being educated in Russian schools, and it’s so devastating. As a professor it makes me feel like — Whose knowledges are we favoring? Who are we bringing into the classroom? How are we treating the students who are here? What languages are we inviting in? What legal orders?

That gets to the next part of your question, which is what does this reemergence look like? It’s so vast. It’s like herring season on the West Coast, or like spring peepers around the Great Lakes. It feels like this convergence of different ways of revitalizing, in community contexts and legal academia and in intersocietal spaces as well.

So some of the things I’m most excited about — to focus on what’s happened in legal academia — in 2018 UVic started a whole program where students can go and jointly learn Indigenous law alongside the common law. To think, when I went to UVic in 2014, there was one class that I was able to do rooted in Indigenous legal orders. With the Truth and Reconciliation Commission’s Calls to Action, we’re seeing mandatory courses, we’re seeing more Indigenous law scholars, and we’re finding ways for non-Indigenous-identifying law scholars to be teaching these courses in appropriate ways too. On the language side of things, we’re seeing something similar in academia, where now you can take Indigenous language courses for credit — here at Queen’s, we have Anishinaabemowin and Kanienʼkéha or Mohawk language. When I went to my undergrad, you couldn’t do that.

And a lot of Indigenous people including academics would be like, yeah, yeah, that’s happening in the academy. Some people focus their attention on what’s happening in community — like that’s where we really need to be doing this work. And there’s a lot of struggle in community, and I don’t think we can eclipse that reality of poverty and trauma and racism in day-to-day life. But at the same time, I spent five years as a lawyer going to all sorts of different First Nation communities, and across the board I was seeing children engaged in language work, having elders go to their schools and teaching, and people trying in their homes to bring the language back. All these sorts of community events are happening, and I think people are finding a lot of pride in it.

In the USA they have tribal courts, and in some places cases are heard and decided in Indigenous languages. How does that work? Is that something we could see or should be trying to do in Canada as well?

I want to start to answer that by telling a story. When I was working for the Heiltsuk First Nation who are on the Central Coast of British Columbia, what they were working on, and why I was there, is they wanted to write an Oceans Act. There had been a huge diesel spill, when a tugboat driver unfortunately fell asleep at the wheel and hit a rock in a really rough channel. It just wiped out that section of their coast, which was so key for their sustenance, spiritual as well as physical.

In that process of writing the Oceans Act, we were working with all these elders and leaders from the community and they were like, we need to write three versions of this act. We need to have it in Heiltsuk language. We need to have it in English that our Heiltsuk people can understand — given that the Heiltsuk language is in a state of revitalization. And then we also need to have it in a level of English that non-Heiltsuk people will understand.

There’s so much to unpack there. They believe that there would need to be two English levels, because their way of speaking English is so different from technical legalese. They wanted to make sure that they were clear about those audiences. I love the story because it resonates with a lot of things I’ve seen in practicing in different Indigenous communities, where they’re using this opportunity to restate their laws, to reinvigorate their laws, as a chance to think through, well, what language are we speaking this in? How does this influence it?   

In the States with the tribal court system, a vast percentage of them are conducted in English, applying US state law — but at the same time, there’s a lot of what originally was called customary law, Indigenous law being applied in these courts too. In the Navajo tribal courts, for example, the judge needs to have sufficient knowledge of the Navajo language (Diné bizaad) given that it is the official language of the Nation under tribal law. So there’s a lot of language requirements in order to go into legal practice there — they have their own bar exams that you have to pass to get called to the Navajo bar.

Matthew Fletcher writes about this. He’s an Anishinaabe law professor at the University of Michigan and he also sits as a tribal court judge for some of those Anishinaabe nations in the US. And he writes about this and says, there are tribes, for example, up in Alaska where their tribal court convening is happening in the language, but then it’s not being written down. He’s had trouble studying that, as you can’t go to any sort of written source.

I love the ability of the community to be doing things on their own, responding to what the needs are locally, having people speak in the language they want to. In the common law tradition that would be quite disruptive — having legal proceedings take place in a way that isn’t able to get put into precedent. There might be a localized succession of decision makers and community close-knit enough that that carries on without feeling overly arbitrary. But it feels pretty different from the scale of decision making that happens outside of a local community.

Naomi Metallic talks about this idea of meta-principles, where you use words in Indigenous languages that express some concept or principle that’s core to an Indigenous nation’s identity as part of the law. You can do that even if not everyone speaks the language or even if not everyone is fluent — you can still use some words to try to express something that maybe you wouldn’t get across if you tried to translate it.  Could you talk about how that works and what kinds of surrounding structures we might need to allow it to happen more?

One place that we’re seeing it right now that I’m really interested in, and am studying, is Indigenous constitutions. Around the Great Lakes region there have been 14 constitutions ratified that are part of the broader Anishinaabe legal order, and all of them have an English version. All of them use some Anishinaabemowin. Some of them have both Anishinaabemowin and English versions. They’re almost all relatively new — less than a decade old.

There’s this word for citizen, dabendaagozid— what is contained in that understanding of citizenship in Anishinaabemowin that’s totally missed when you’re coming from a liberal legal lens? The Chippewas of the Thames First Nation near London, the Deshkan Ziibiing, for example, explicitly recognize in article 10.4 that the crawling ones, the winged ones, the gilled ones, the four-legged ones are citizens, equal before and under the law of the Deshkan Ziibiing. To recognize these more than human kin as citizens in constitutional text is so fascinating.

There’s lots of interesting interpretation that’s going to mostly be taken up by the community, but it’s going to be relevant for industry as well, coming in and wanting to do developments in their territories. And nations are passing a consultation protocol, for example, flowing from their authority articulated in the constitution. They’re finding ways to express their law in this transsystemic mode. Meta-principles are one of the easiest ways to invite people into a beginning understanding.

I did want to ask you about what Canadian law is or isn’t doing to make room for Indigenous languages and laws. One thing you talk about in the book is how te reo Māori is an official language in New Zealand under the Māori Language Act. In Canada we have the Indigenous Languages Act. It doesn’t create any official languages. It creates the office of an Indigenous Languages Commissioner. Have these things helped? Is there more that could be done? Would it be worthwhile to pursue the model of an official language, or is that too tricky with multiple different languages?

It is really tricky. About five years ago I attended this conference at U of T about law and language and there was a woman there whose research was all about studying language commissioners who had had their positions created through federal legislation. She was understanding how their roles were functioning in their various countries. Her insight across the board was that, the moment a language commissioner is doing a good job — in the sense of bringing forth the diversity of languages in their country and representing minority languages — is the moment they have the hardest job. Because no one in leadership wants them to be doing a good job. It’s inconvenient, it costs money.

I feel empathetic for people in leadership who suddenly have someone tell them “OK, we’re going to need $10 million for Cree language education in northern Saskatchewan.” And meanwhile, they’re dealing with, I don’t know, an opioid crisis or all other things that money has to go towards. All to say that the very nature of creating a language commissioner is a struggle and it’s not that I think it shouldn’t happen, but I feel sorry, I feel tender, for the person in that role.

There’s over 70 Indigenous languages spoken in Canada across 12 language families, and that diversity is totally absent in the Aotearoa New Zealand context. New Zealand is an island and there are different dialects of Maori, but it’s all mutually intelligible. So what can we be doing? It’s kind of like rewriting borders. What can we be doing in the Great Lakes region, in the Saint Lawrence Valley region, in the west coast of Vancouver Island?

My kids at the Limestone District school board here in Kingston can take Anishinaabemowin classes during the school day. For the Mohawk kids, they can go to Mohawk Immersion school over at Tyendinaga. I think that the little ones are the answer here. Education is what took us out. Let’s bring education to bring us back in. And scale that at different levels of community life, because it’s not realistic to think that Indigenous people today don’t want to be learning English. I also want to be able to study chemistry and whatever.

I want to turn to some bigger questions of how languages shape our thinking, our experience of the world, or how we relate to each other, and how a legal order could be at home in a particular language, such that something is lost if you try to pull them apart. In your book, a character says, “when people feel connected to the law and the language through which it is expressed, there are more likely to follow the law.” What are some of the ways that language connects people to law? Is something lost if we try to translate a body of law into a different language than the one it developed in?

I spent a decade working with stories — different Indigenous stories that belong to different communities — talking to people about what those stories meant and how they saw decision-making happening in the stories, what kinds of obligations are put forward in them, what can people expect of one another. These sorts of questions of law. Because it was through story, everyone could participate. We’d talk to kids — what do you think this story says about what needs to happen after someone does this hurtful thing? And they’d get into it. In a way, the common law is a system of stories too, but the way cases work is that there’s a lack of freedom — there are all these interpretive boundaries in the way.

I do a lot of environmental law, and there’s a lot of stuff happening in these ecological studies around, yes, we need to engage in restoration of landscapes, but what about re-story-ation of our cultural landscapes? To restory our languages can profoundly impact how our laws can become more accessible to people.

I also think about ceremony. The language of ceremony is an aesthetic language. For example, when you hold out a dish with sage in it for smudging, when you’re in that cultural context, you don’t have to say “Now it’s time for cleansing your mind, what you see, what you say, what you hear, what’s in your heart.” Everyone goes through this action and cleanses themselves to get into the right mind to be there. That is a form of somatic language that’s embedded into the legal process. And I’m not sure that swearing on the Bible or affirming your truthfulness is quite so deeply and thickly layered in ceremony.

Maybe some of the layers that might have had 200 or 300 years ago might not be there now. Still, some are – why does the law say you have to put your hand on the Bible, and say something in a solemn tone? You go into a courtroom and someone says an archaic phrase like “All rise”, and then you all stand up, in a way that people do in religious contexts, but not many other contexts.

But in a religious context you get the opportunity as a community member to go every Sunday or Saturday, whatever day your worship day is. You can steep yourself in that over time. In a legal context, the judges and lawyers get to do that, but everyone else is like, “what am I doing here?” They don’t get to learn the language of the ceremony, and then they feel kind of outside, disconnected from the law, like it’s just something that’s done to them. They don’t see themselves as agents. And hopefully if all goes well, they won’t ever have to do it again.

Imagine if we had the time and the resources to bring people who are coming to court to find out what would be meaningful for them. To steep them in a sense of how important coming into this space could be for their healing and moving back into society.

Jane Philpott has written this book about medical clinics. Her vision for reworking the way we receive medical care in Canada is to have it be like public education. There’s schools all over the place, and every kid can get a school bus to a school and they get to learn. In Ontario that can be in English, it can be in French, it can be Catholic English, it can be Catholic French. What if you had a medical clinic that was your community hub, where everyone can go and meet?

Reading her book made me think: what if our legal system — not for some issues, some issues are too complicated and out there — but for family law issues, residential tenancy issues, even criminal issues, more minor ones, was like that? You could have this model that is more like a community space. You all know what it’s like to be there. Your social worker’s there, you have a network there.

In your book, you say, “language and laws are rooted in a particular geology and ecology.” Often in discussions of Indigenous legal orders, the idea of land is really important. How does language figure into the connection between Indigenous legal orders and land?

… It reminds me when my friend Hannah Askew was learning Anishinaabe law for the first time. She’s non-Indigenous, she has her law degree from Osgoode. She was so struck by this teaching that in Anishinaabe law, the idea is, when a robin flies by, that’s a case. When you’re rooted in that cultural tradition, you know the set of stories about Robin. Or you’re in a maple sugar grove and you know all the stories about maple sugar. The landscape is all of these teachings about how you are meant to behave. In some instances they’re trickster stories. The land is constantly reminding you of how to be a good person in that place and with the people and more-than-human beings around you. I’ll always remember her being like, I never thought about a robin flying by as reminding me of the importance of respecting people’s agency or something like that. We need to have these daily practices to remind us of our connection to place.

The second part of your question is, would something be lost, for example, in translating a body of law into a different language? And likewise into a different place? That’s what colonialism is: it takes a language and a law, and then forces it into a totally different place and over a totally different type of people. And I don’t think it can do that without being changed. It becomes something at least slightly new.

I often talk about how Indigenous legal orders are living, you know, they’re not frozen in the past. I had someone ask me one time, well, is the common law living? And I was like, yeah. I do think the common law is living. It’s always developing, and it is rooted in tradition and in some instances like property law, you can go back all these many years and understand where a rule comes from or a way of framing things comes from. But it evolves out of that.

I’m of the persuasion that if we view ourselves as these pure vessels that have never interacted with any other language or any other place or any other people, then we lose the reality that we’re always changing and we’re always interacting. And so, as to translating a body of law into a different language, on the one hand, yes, something is lost. But on the other hand, that’s just the very nature of what law is — it has to change.

You’ve worked on the rights of nature and treating different kinds of natural beings as persons. My last question is about how grammatical differences might shape the content of the law. If we’re referring to something as it versus as he or they or she or any personal pronoun, does that affect the content of the law? Does it lead us in one direction rather than another?

This is a good question for you too, as a property person, because women used to be property, but were always referred to as she/her.

So it’s not a one to one thing. Pets, even now, are still our property. But people use he or she to refer to them. So it can’t be that straightforward, but maybe there’s some connection?

I really love Robin Wall Kimmerer’s work in Braiding Sweetgrass — she’s an Anishinaabe botanist — and she has a section on the language of animacy, or the grammar of animacy. She suggests using this term ki instead of he or she — because ki, or aki, in Anishinaabemowin means Earth. When I walk with my Indigenous ethnobotanist friends, whenever they see a new plant that they don’t know, they’ll be like Who are they? They don’t say What is it? And if you want to know who that plant is, then you offer something and you speak to the plant and spend time getting to know the plant. You don’t just Google it or whatever.

I believe that our laws in Canada, the common law, would be so different if we viewed the Earth as animate and deserving a certain amount of respect. The way plants appear in our legal order is as something to be exploited for human gain (except for the Species at Risk Act, but you only get that designation after you’ve been at risk, so it’s a funny act to have in the first place). Attentiveness to how our language structures land influences not only the environmental decision-making that we engage in, but (like in Jenny Nedelsky’s work on Law’s Relations) law itself is just a structure of how we engage in relationship, and it will necessarily impact our human-to-human relationships.

What I mean by this is, in Anishinaabe we have this practice akinomaage, it’s the verb to teach, where aki again is Earth, and nomaage is to point towards, so teaching is pointing towards the Earth. Thinking about maple trees, like a maple sugar grove or sugar bush, it’s like that place — those tree-beings, ininaatig, which literally means the man-tree — we can look at those and then reason by analogy about how we might structure our own citizenries. And we might think about, what do those maple trees show about how to be good citizens? How might we replicate that in our own patterns, and how can we ensure we treat those maple trees as important recipients of these rights? ■

Interview by Manish Oza. Some of the work referred to in this interview:

• Lindsay Borrows, Otter’s Journey Through Indigenous Language and Law (UBC Press, 2018)
• Naiomi Metallic, “Five Linguistic Methods for Revitalizing Indigenous Laws” (2023) 68:1 McGill LJ 47
• Naiomi Metallic, “Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation” (2022) 73 UNBLJ 133
• Matthew L. Fletcher, “Rethinking Customary Law in Tribal Court Jurisprudence” (2007) 13 Mich J Race & L 57
• Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (2012) Oxford University Press
• Jane Philpott, Health for All: A Doctor’s Prescription for a Healthier Canada (Signal Books, 2024)
• Robin Wall Kimmerer, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge, and the Teachings of Plants (Milkweed Editions, 2013)