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FEATURE
Having documented Aboriginal law at first
European contact in eastern Canada, we look in
vain, as did the Jesuits, for Aboriginal parallels to
French categories for laws of property, obligation
(contracts and torts) and criminality. What Aboriginal
peoples can find about their seventeenth century
ancestral legal systems is that they did have a law
of property that attempted to balance individual
rights of possession of things with shared family and
communal holdings, that this was linked by elaborate
gift-giving transactions, with promises to be kept
and punishments sparingly applied. A few Jesuits
grudgingly admired this but most rejected and some
ridiculed such customary laws. For the full story, read
any volume of the Jesuit Relations, available in library
hard-copy or by an on-line Google search.
Archives of Manitoba in downtown Winnipeg
Our second great literary source for Aboriginal law
is now in downtown Winnipeg, at the Archives of
Manitoba: thousands of original documents from
the Hudson’s Bay Company, for the 1700s and
1800s in central and western Canada. In the third
week of the course, students have one class there,
in a hands-on introduction to recorded Company
encounters with Aboriginal groups and individuals,
from Ontario to the Pacific. Each “factor” or agent
in each of the hundred-plus Company trading forts
was required to keep a day-book recording weather,
supplies, trading activities and every comingand-going
of every Aboriginal person. This often
included references to cultural events and rulegoverned
behaviour, that again offer insights into
property, promises and penal practices. Students
are encouraged to put such evidence for nineteenth
century western Canada alongside the seventeenth
century eastern Canada Jesuit observations, to get a
continuing reconstruction of first contact Aboriginal
law. For the full Company story, visit the Archives of
Manitoba in downtown Winnipeg or try Google.
Once we juxtapose chronologically the Jesuit and the
Hudson’s Bay Company evidences, from the 1620s
to the 1900s, the prospects for my other course, in
Comparative Law, take off. About twenty students
follow a syllabus that begins with comparisons within
Canada’s three founding legal traditions: Aboriginal,
French, English (with added reference to Scottish).
Then we broaden this to comparative religious legal
systems, both western (Jewish, Christian, Islamic) and
original Aboriginal belief systems (animism, creation
myth, spiritualism). The course continues with a
variety of modern comparisons for the United States,
United Kingdom, France, China and Latin America.
With Aboriginal legal history so accessible, literally
and in oral traditions from living Elders, where is
modern Aboriginal law? Has anyone in Canada
systematically resurrected it, as law that is separate
from and older than Canadian Indian Act law? The
short answer, sadly, remains academic. A few scholars
have struggled to retrieve and reconstruct it: James
(Sakej) Henderson, Darlene Johnston, Kent McNeil,
John Borrows, Bruce Trigger, for examples. But until
mainstream Canadian legal and judicial professionals,
federal and provincial legislators and civil servants,
and most importantly modern Aboriginal chiefs and
political leaders, recognise such academic research
and are willing to act on it, Aboriginal law will exist
only in select law school courses, such as these at
Robson Hall, in the Jesuit Relations and Hudson’s Bay
Company Archives, and in the silenced oral evidence
of aging Aboriginal Elders.
UNIVERSITY OF MANITOBA, FACULTY OF LAW robsonhall.ca 80