Where is the Justice?

Reviewed by Olivia Burgess

As General Counsel for the Musqueam Indian Band, a position he has held for over thirty years, Jim Reynolds joins practical experience with academic understanding to both explain and question the development of Aboriginal law in Canada. Specifically, he looks to “modern Aboriginal law developed since [Harold Cardinal’s] The Unjust Society [1969]” to answer the questions “Do we have a just society?” and “Are Aboriginal and treaty rights now restored?” Spoiler alert: the answer is no. Reynolds concludes that there “is still a long way to go before Canada can claim to be a just society for Aboriginal peoples.” To reach this conclusion, he engages in a practical analysis of the past, the present, and the foreseeable future. He looks back on significant decisions in the Supreme Court of Canada (and a few lower court decisions), their outcomes, and their effects on the Aboriginal peoples involved as well as the rest of Aboriginal Canada. In addition, Reynolds looks to the ongoing discussions of these decisions, acknowledging both their proponents and their critics while also stating, in no uncertain terms, his own stance in these debates. Finally, he looks forward as he makes projections regarding future government and court conduct and the probability of key court-proposed changes coming into effect. While he supports many of these potential solutions, Reynolds does not shy away from critiquing the role the courts have played in creating an unjust society for Aboriginal peoples.

In an era of “reconciliation,” when academics, politicians, and courts have become increasingly sensitive to the terminology used to refer to Indigenous peoples, Reynolds draws attention to this predominantly nominal shift by continuing to use the term “Aboriginal”—most visibly in the title of his book. He chooses this term not only because it is “the term used in Canadian law,” but also because Aboriginal law in Canada does not yet reflect Indigenous legal principles or perspectives, and instead remains “the law of the Canadian legal system applying to Aboriginal peoples.” This is not a book about Indigenous laws, Indigenous politics, or Indigenous peoples as they strive to be seen; this is a book about Canadian law and Canadian politics as they apply to the peoples described and defined therein as “Aboriginal.” Reynolds suggests throughout that bridging the gap between these two sources of law would be a significant step towards achieving a just society for all Canadians.

If the subject matter sounds inaccessible to anyone outside the legal community, fear not. Despite its focus on the genesis, history, and implementation of Aboriginal law, Reynolds’ book truly is a “critical introduction.” Its intended readership includes “law students; students of Aboriginal studies, politics, and the social sciences; and general readers interested in this fascinating and important topic.” As an introduction, it offers ample contextualization of contemporary developments within the law—including overviews of historical background, treaties, Crown sovereignty, and Aboriginal rights and title—while keeping legal jargon and technical analysis to a minimum. In its efforts to remain accessible to all readers, Aboriginal Peoples and the Law invites all Canadians to participate in this crucial national discourse.

This review “Where is the Justice?” originally appeared in House, Home, Hospitality Spec. issue of Canadian Literature 237 (2019): 167-168.

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