Aboriginal Peoples and the Law: A Critical Introduction

Review By David Milward

February 5, 2019

BC Studies no. 201 Spring 2019  | p. 159-160

Jim Reynolds, a highly experienced Aboriginal rights lawyer, pursues two ambitious aims with his new book, Aboriginal Peoples and the Law: A Critical Introduction. One is to provide a succinct yet comprehensive overview of Canadian law that focuses specifically on Aboriginal peoples. And the author hopes to do so in a way as to make Aboriginal law, for all its complexities and contradictions, accessible to a general layperson audience. The other objective is to provide reflections on Aboriginal law for both laypersons and specialists alike.

As for the first objective, the book succeeds at striking the right balance between brevity and completeness without any significant omissions. And it is very well written. It is, however, difficult for me to assess whether he has succeeded in his objective of reaching a layperson audience. I understand the topic very well, and thus cannot fully place myself in those shoes.

I do appreciate that the objective is a noble one. My experience has borne out that there is substantial ignorance with respect to Aboriginal legal rights. I have frequently encountered the attitude that the legal system imbues Aboriginal peoples with special privileges that they are ungrateful for and do not appreciate. Even the very educated are not immune from similar notions, as the title of Alan Cairns’ well-known book, Citizens Plus, conveys. Aboriginal peoples, including academics, professionals and grassroots alike, have quite different notions, insisting that the Canadian legal system remains fundamentally unjust in its treatment of Aboriginal rights. I cannot help but applaud Reynolds for setting out to enlighten his audience to the extent that such is possible.

It is the attainability of such an endeavour that I wonder about, for which I do not fault Reynolds. I do have some concerns that the book itself remains laden with unavoidable jargon and heady language. However, I am convinced that this is more a reflection on the subject matter itself than on Reynolds’ work. I think he has made as good an effort as is humanly possible. What I am unsure about is whether he has set himself to an impossible task that cannot substitute for dedicated classroom instruction, or whether multiple readings of the book will imbue the necessary understanding for the lay reader.

Reynolds also succeeds in offering insights and reflections that newcomers and specialists alike can appreciate or at least understand. For example, his critique of the interim remedy regime available to Aboriginal rights litigants is quite penetrating. The law on interim Aboriginal rights accommodation is, despite its surface language, not as generous to Aboriginal claimants as it purports to be. It is in practice difficult to convince judges that the businesses exploiting Aboriginal lands are the ones being unreasonable, or to use the regime to reach an enduring agreement that truly benefits Aboriginal communities. Yet if Aboriginal communities do not engage with the process, they become the uncooperative ‘bad guys’ in what ultimately becomes a no-win situation. One minor quibble that I have is an occasional tendency to provide isolated quotes from other authors, but without situating those quotes within the authors’ broader works. Two examples that stood out to me were quotes from Thomas Flanagan and Frances Widdowson that, in isolation, seem motivated by genuine concern for the well-being of Aboriginal peoples. Yet their writing is viewed by many Aboriginal readers, myself included, as frankly contemptible and racist. Maybe Reynolds did not intend that effect, but it stood out to me all the same. I can nonetheless recommend his book as a solid read for anyone interested in the field.