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Nettheim, Garth --- "Interview with John Burrows" [2004] IndigLawB 3; (2004) 5(29) Indigenous Law Bulletin 6


Interview with John Burrows

by Garth Nettheim

Professor John Borrows from Canada is a leading First Nations Law professor and author of (among other titles) Borrows and Rotman, Aboriginal Legal Issues – Cases and Commentary (2nd ed, 2003, LexisNexis Butterworths) and Recovering Canada: The Resurgence of Indigenous Law (2002, University of Toronto Press). He will visit Australia in 2004. Professor Garth Nettheim recorded this interview with him in November 2003.

John: My people are Anishinabek (some people call us Ojibway or Chippewa). I am a member of the Chippewas of the Nawash First Nation from Georgian Bay, in the Lake Huron area of Ontario, Canada. There are about 2,000 people that live on the reserve. We are part of a larger group that is found around the Great Lakes, in Wisconsin, Michigan, Minnesota, Ontario and Manitoba.

GN: What attracted you into doing law?

John: My great-great-grandfather had signed treaties in the area I grew up in. The treaties dealt with 1.5 million acres of land and I was taught this history as I was growing up. My mother showed me various places where my ancestors would do different things on the land. She told me how they were able to live their lives, not just on the reserve, but throughout our traditional territory. As I grew older I wondered why we were only interacting with the reserve lands, when the treaty gave us access to all the territory to share with others. Part of my reason for going into law was to satisfy my curiosity about this issue. I'm still trying to figure out the answer to that question: are there ways that we can more fully access our land?

GN: Tell me about your legal education.

John: I attended the University of Toronto from 1987 to 90 and was disappointed with my first experiences at law school. It wasn't really what I had expected. There was too little emphasis on the everyday world of the law. Things started to change though by the time I got to third year. I asked to volunteer on a case that was being argued before the Supreme Court of Canada and one of my professors helped to facilitate my involvement. It was the Bear Island Land Claim case involving the Temagami Anishinabek in northern Ontario. I worked with the lawyers drafting pleadings and legal argument and developed a real interest in what was being done. I ended up writing a paper as part of my experience. After submitting the paper to my professor, Patrick Macklem, he said, "This is good. You know, you could be a professor too." I am so grateful for his encouragement; it opened the door for me to think about furthering my legal education. I had applied to be an articling student, in preparation for becoming a lawyer, but on his encouragement I also applied to Graduate School. I was accepted into a few programs and so I deferred my articles for a year and got my LL.M. at the University of Toronto. I wrote about the seven generations of my family's history relating to our treaty, land claims and self-governance. I enjoyed graduate school so much, and had discovered so much information that I thought was worthy of comment, that I enrolled in Osgoode Hall Law School for my Doctorate. I worked with Kent McNeil and Brian Slattery, and wrote a dissertation dealing with the legal history of the Manitoulin Island Anishinabek, which is the community just north of mine.

GN: Did you practice at all?

John: I have acquired professional qualifications. I was called to the

British Columbia Bar, and worked with Arvay Finlay in Victoria on Constitutional Law and Aboriginal Rights Claims. We were working on the Haida case, which is a land claims case off the coast of British Columbia on the Queen Charlotte Islands. The Haida people are claiming aboriginal title to the entirety of the islands and I helped explore some of the legal arguments that case will raise.

GN: And how has your academic career moved?

John: It's been a wonderful career because of the students. I think I've taught about 500 aboriginal law students in my time. I started out on tenure track at the University of British Columbia as the Director of their First Nations Law Program in 1992 to 1994, while I was finishing my Doctorate. When I got my Doctorate from Osgoode I then went back to teach at Osgoode. I took up a tenure track appointment there and taught for a couple of years. I was also the Director of their Intensive Programme in Lands, Resources and First Nations Governance, which was an externship program that placed Aboriginal students and non-Aboriginal students in settings, dealing with Aboriginal peoples around the world. Students went to Botswana, Washington, Geneva, United States, Australia, New Zealand, and it was wonderful to be a part of the formation of that program. I enjoyed helping students to bridge and reflect on the relationship between ideas and practice. I received tenure at the end of my time at Osgoode. But I enjoyed my experience in British Columbia, so I went to British Columbia for a couple of years as the Director of the First Nations Program once again, this time with tenure. I was then recruited by my alma mater at the University of Toronto (U of T). I had a wonderful experience teaching and working as the Native student advisor at the law school. We set up a million dollar endowment for aboriginal legal education at the end of my time at U of T. I then was a visiting professor at Arizona State University (ASU) and worked as the Acting Executive Director of their Indian Legal Program for a year. I learned a lot about Native American Tribal Courts because they had a large training program there. They also had 35 Native American students. I strongly considered staying at ASU. I loved the people and the desert and the law school, but as I was coming to the end of the first year I realised that there were still things I wanted to do in Canada. I considered going back to U of T but took up a position at the University of Victoria (UVic) where I am now situated. I'm the Law Foundation Chair in Aboriginal Justice at the University and a full professor. I helped with the development of the Akitsiraq Law School - a law program for Inuit students offered entirely in Iqaluit, Nunavut, their homeland. Akitsiraq is a satellite law school of UVic, and students receive their LLB from Professors travelling north to the arctic to teach them for 3 months at a time. I was there from January to April 2003 and had an extraordinary time.

GN: What are the principal research areas that you've worked in over the last years?

John: My research started out in the area of legal history, dealing with the treaties I was describing earlier. But once I learned about the foundation of this area, I recognised that the contemporary implications of that history were quite important. The Supreme Court of Canada started to develop its jurisprudence on Aboriginal rights while I was in graduate school and so I have written about their work. And now, the main work I'm dealing with is our own laws as Indigenous peoples and how those laws can be received into Canadian law. I believe that these laws are not only a benefit to Aboriginal peoples, but can also be of benefit to the Canadian public as a whole.

I'm hoping to develop my Comparative Law interests. I've been teaching US Federal Indian Law for about five years. I've also been doing a little work in Finland and Norway, considering Sami legal issues. I will also be in Australia for five months. You and I will be teaching during that time and I am looking forward to developing my understanding of the Australian system beyond what I read in the books. I am interested in pulling out the best principles from each of the systems I have worked with, so that Aboriginal people can learn from one another's experiences.

GN: You'll be spending February at the Australian Institute of Aboriginal and Torres Strait Islander Affairs, and then approximately four months at the University of New South Wales. Are there any particular areas you'd like to look at?

John: Well there are a couple of issues in which I am interested. Hopefully I will meet people who would like to talk with me about them. One is the issue of treaties or agreements in Australia. I wonder why there hasn't been more widespread use of Aboriginal consent to deal with Aboriginal rights in Australia. And so I would like to explore that issue with people, and contribute what I can, but also be open to learning from what others have to offer. I'm also very interested in this issue of Native title. It looks to me, from afar, that the legislative framework has taken over the way Native Title is currently being processed by the courts. I am interested to see if there is anywhere that the larger principles of consent and reconciliation could infuse the jurisprudence and influence the way people are thinking about this issue. As you look around the world there is a real opportunity to share. I hope there is some interest in exploring how Australian jurisprudence could be reinvigorated by drawing analogies from other countries. I also want to take what is working well in Australia and see if it can be applied at home.

Garth Nettheim is an Emeritus Professor at the Faculty of Law, University of NSW.


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