Water is Law

This teaching is based on an article written by Dr. John Borrows. 

Borrows, J. (1997). Living between Water and Rocks: First Nations, Environmental Planning and Democracy. The University of Toronto Journal, 47 (4): 417-468.

 

In his "Living between Water and Rocks" article, Dr. John Borrows addresses obstacles in North American democracies which prevent First Nations from participating in the governance of their environment. It argues greater participation of Indigenous peoples in land use planning processes could improve both procedural and substantive outcomes of democracies. The author, John Borrows, conceptualizes three levels of participation: beyond inclusion at all stages of the process, environmental planning should also express Indigenous knowledge and be partly evaluated through Indigenous standards.

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Indigenous peoples encounter numerous barriers in North American democracies which make them invisible in land planning processes on their own land. The outdated Indian Act hinders First Nations governmental powers and the federalist structures favour national/ provincial governments. Indigenous peoples are considered a federal responsibility and therefore are not accounted for in provincial planning. However, the province does not consider First Nations to be conventional municipalities or interest groups. On the other side, the federal government has failed to implement effective mechanisms for Indigenous representations and is reluctant to extend its responsibility to off-reserve First Nations, despite the fact that Indigenous peoples have environmental interests beyond reserve boundaries. As a result of being caught between competing political jurisdictions, Indigenous peoples have little to no power in environmental decision making.

Indigenous exclusion within North American democracies has been greatly assisted by the operation of law. Common law has imposed a culturally exclusive notion of space and time which is often inconsistent with Indigenous participation. For example, North American (both Canadian and American) law rarely recognizes the integrity of natural spaces, such as forests or watersheds. Instead, they allows for the appropriation and separation of resources from their natural ecosystem, thus denying their connections from one another as well as the disconnection from the Indigenous peoples of that land. This culturally exclusive vision of geography, which is currently passing as neutral facts in land use planning, has led to racist and anthropocentric views of representative democracy. With the degradation of our biophysical and sociological ecosystems, there is a growing need to move beyond this environmental racism and allow local Indigenous communities a democratic voice in regulating environmental rights and obligations. Beyond procedure and process, Indigenous participation can lead concrete contributions to environmental planning projects by bringing greater attention and standing to ecological considerations. Traditional legal knowledge systems can enhance both democracy and sustainability.


The Hay Island Project

In 1992, a development project involving the construction of seasonal residences on Hay Island was approved despite environmental concerns.  The Chippewas people were excluded from the planning process which raised serious issues of notice, misrepresentation and conflict of interest. Local planning agencies did not disclose the proposed development of the reserve to Chippewas people. Moreover, the developer’s planning report stated the Band Council approved mainland access from the reserve to developers, a statement disputed by the community. Another procedural flaw was noted as the planner who wrote the proposal eventually became one of the parties with shared responsibility for its approval. This case illustrates the procedural and substantive exclusion of First Nations from land use planning and community design.


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Crucially, to be democratic, the inclusion of Indigenous knowledge systems requires more than just procedural restructurings, such as institutional reforms and interest group reconfigurations. Direct participation is not enough because direct democracy may still allow for unrestricted majority rule to eclipse the interests of the minorities. Given the natural environmental has no vote, that future generations cannot cast a vote yet and Indigenous communities are numerically small, their interests will most likely be outvoted under existing structures. There is a need for more substantive reforms to include those constituencies. Given that contemporary legal rules were developed within a cultural logic erasing Indigenous peoples and ecological relationships, First Nations contributions need to be evaluated in part using First Nations standards. Indeed, even in an inclusive democratic framework, Indigenous legal knowledge systems will only enhance sustainable outcomes when judged from a conceptual space that challenges western geo-legal ideas. This substantive reconfiguration can destabilize current boundaries between humans and their surroundings and assist in understanding the intricacies and connectedness of First Nations stories.

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Indigenous laws are as varied as the different communities they emanate from and are grounded in First Nations’ traditional stories. Traditional stories are a primary source to discovering legal precedents that guide environmental planning. For example, the story of the Bears, Bees et al v. rabbit set an important precedent for the development of Anishinabe environmental law which oriented the conclusion of subsequent cases, such as the case of Nanabush v. Duck, Mudhen and Geese. These stories hold implications for the use of resources and their monitoring. They speak to the importance of designing to scale, of replenishing or restoring the environment after use and establishing reliable monitoring systems when making use of the environment. If these Anishinabe legal principles are violated in environmental planning, Anishinabe stories warn that there is an eventual consequence that the resources will no longer exist. The extension of these principles into common law would provide better criteria to evaluate the merits of including Indigenous knowledges in land use decision processes and would draw attention to more creative answers to meet our environmental challenges. All environmental problems cannot be understood through Indigenous knowledge given historical, environmental and social differences. Rather, the author suggests, what is needed is an interactive process between ‘western’ and ‘Indigenous’ law which would reshape law in manners which are consistent with, but also significantly extends, existing legal principles. In such two-eyed seeing approach lies a hope of reaching more inclusive democratic conversations, to reintegrate democracy and law with environmental concerns and build more sustainable communities into the future

The summary is prepared by Marina Guessous and reviewed by Myia Antone.

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[VIDEO CONTENT: Dr. John Borrows is interviewed and shares some teachings about water and law.]