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Reviewed by:
  • Freedom and Indigenous Constitutionalism by John Borrows
  • McGregor Deborah
John Borrows. Freedom and Indigenous Constitutionalism. University of Toronto Press. x, 374. $34.95

This book challenges commonly held conceptions of Indigenous peoples as possessing an "unalterable central essence or core" that distinguishes them as distinctly Indigenous. These false notions, John Borrows asserts, may cause harm as they limit freedom of expression and restrict the transformative quality of the lived reality of Indigenous peoples over time. They also perpetuate "fundamentalist" or "essentialized" ideas of Indigeneity, which he argues only serve to undermine the very future Indigenous peoples strive for.

Borrows' assertions will no doubt generate controversy, yet through careful examination of case law – in particular, the "integral-to-distinctiveculture" test, Borrows exposes how such falsehoods have been used to limit the interpretation of Aboriginal and treaty rights in Canadian jurisprudence and elsewhere. He also asks the reader to reject universalized assumptions and explore how Indigenous peoples actually lived, transformed, and made deliberate decisions to secure their future.

To avoid the pitfalls associated with these false generalizations, Borrows calls for intellectual mobility that actively avoids any one intellectual ideology or path that confines one's own reasoning and ability to think and act freely. He seeks to deconstruct "grand theories [while] rejecting political, social or legal classifications." He also introduces the idea of physical philosophy, or akinoomaagewin, characterized as being "inductive, and [deriving] conclusions from experience, observation and discussion." He explains that when decision-makers ignore lived reality, and [End Page 272] Aboriginal and treaty rights are deliberated in the abstract, decisions in turn fail to recognize and reflect the "messiness" of life. He believes place-based physicality offers a more useful starting point than do abstract theories that operate within existing and pre-determined categories.

Borrows explores this terrain by focusing on the Anishinabek Nation, to which he belongs. The Anishinabek, he explains, strive for two central aspirations: mino-bimaadiiwin (living a good life) and dibenindizowin (freedom). Borrows devotes a chapter to analysing case examples of Indigenous civil disobedience and their relationship to self-determination and shows how such dissent can lead to productive deliberation and that there are different pathways for achieving both mino-bimaadiiwin and dibenindizowin.

Borrows critiques Canadian constitutionalism from the premise that legal reasoning is disconnected from the real world or lived reality of Indigenous peoples. He demonstrates how courts and legislatures continue to confine Indigenous political structures through an ideology of "originalism," and he directs his critique at Canadian constitutional law. He also observes that originalism manifests itself as an ideology within Indigenous legal traditions as well. He offers the "living tree" metaphor as a more appropriate approach to constitutional interpretation for Aboriginal rights jurisprudence, an approach that is rooted in the past yet is adaptive and looks to the future.

Despite being well aware of the tragedies that continue to be perpetuated as a result of ongoing colonialist agendas, Borrows cautions against rigid ideologies that require a rejection of nation-states and their capacity to respond in a just manner to Indigenous peoples. When applying the theory of physical philosophy to legislative reform, he demonstrates how context-specific actions can strengthen communities and initiate the process of decolonizing Canada.

In his chapter on Aboriginal rights and violence against women, he states that "gender is essentialized in ways that limit both men's and women's freedoms." He points out that section 35(1) of the Constitution Act does not deal with violence against women, nor are Indigenous governments recognized as having jurisdiction over this issue. Indigenous women are not recognized as requiring unique protections despite the systemic violence that is perpetuated upon them. Borrows suggests that Indigenous legal traditions, when using the living tree approach, may offer creative alternatives to the status quo and, thus, over time alleviate the suffering and violence inflicted upon Indigenous women.

Ultimately, Borrows does not ask the reader to comply with his own philosophies. Instead, he asks that we be rigorous in our own thinking and that we resist imprisoning ourselves within established conventions. Ending off with the Anishinabek story of Pitchii, Borrows leaves us [End Page 273] to do both of these things – applying our own imagination...

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