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