To Indigenous peoples, language is the foundation of identity and culture. Indigenous languages carry rich meanings, theory, law, worldview and philosophies within their structures. And they are at risk: the United Nations Permanent Forum on Indigenous Issues has found that an estimated 90% to 95% of the world's spoken languages, many of which are Indigenous languages, will become extinct or seriously endangered by 2100. The UN declared 2022-2032 the International Decade of Indigenous Languages to call attention to this loss.
One way to help protect, preserve and revitalize Indigenous languages is to incorporate Indigenous languages into legal documents. Using and discussing Indigenous legal terms and concepts is a means of preserving and keeping Indigenous languages alive, and drafting agreements, constitutions and other legal documents using an Indigenous language similarly helps to keep culture, teachings and Indigenous laws alive.
To support Indigenous language revitalization, Woodward works with Nations and our clients to draft their own legal documents in ways that respect and honour their cultures. We are passionate about serving Indigenous governments in their pursuit of self-governance and ongoing governance matters, and we believe that doing so in their own languages whenever possible is very important.
If you'd like more details on incorporating Indigenous language in legal documents, read the full article below. The article explores why Indigenous words and legal concepts should be used in legal documents or legislation, and how to overcome some of the common challenges in this work through best practices.
Revitalizing Indigenous Languages Through Legal Drafting (Full Article)
The United Nations has designated the years 2022-2032 as the International Decade of Indigenous Languages. Indigenous languages are the foundation of Indigenous culture and identity. They carry rich meanings, theory, law, worldview and philosophies within their structures.1 Canada, in the preamble to the Indigenous Languages Act, SC 2019, c 23, has acknowledged that "Indigenous languages are fundamental to the ... self-determination of Indigenous peoples". Across Canada, Indigenous communities are working to revitalise and maintain their languages and legal orders. One way in which this work can be done is by employing Indigenous languages in legal documents such as agreements with the Crown,2 constitutive documents of a corporation,3 or unilateral Indigenous legislation such as Indian Act bylaws, land code or other laws.4 In this article, we will explore: (1) why an Indigenous community may want to include their Indigenous language in legal documents or legislation; (2) some common challenges in doing so; and (3) some best practices when drafting legal documents using an Indigenous language.
- Why use Indigenous languages in legal documents and legislation?
Nearly 300 distinct Indigenous languages are known to have been spoken in what is now North America, while many more have disappeared with little trace. According to the Royal Commission Report on Aboriginal Peoples, the Indigenous languages spoken in Canada numbers between 53 to 70, making up 11 distinct language families for First Nations. Inuktitut, the Inuit language spoken in the central and eastern Canadian arctic, also has several dialects, and Michif, the language of the Métis, is spoken across Canada.5 Each of these languages, and dialects, contains entire cosmologies and legal orders which need to resume their rightful place in the legal landscape of Turtle Island. In other words, the age of "colonial legal monolingualism" must come to an end.6
Symbolically, the use of Indigenous language in legal documents and legislation expresses a "political commitment to decolonisation, reconciliation and redress."7 It is also a means of preserving and keeping Indigenous languages alive by actively using and discussing them and the legal concepts with which they are imbued. Given that we are in the early days of advancing this work, Indigenous words and concepts have appeared mainly in the "fluffier" (or non-binding) part of legal documents (e.g., in agreement recitals and the preambles to legislation). But to truly begin to center these documents around Indigenous legal orders, the goal should be to move Indigenous languages out of strictly symbolic or performative roles, and into the substance of the agreement or law.
- Potential Challenges
An Indigenous community may face several challenges when deciding to, or attempting to, incorporate their language into legal documents; namely:
a. Lost in Translation – the interpretation issue
At some point the agreement or legislation being drafted may need to be interpreted by a court, which poses some risks and concerns. Courts will be asked to refer to Indigenous words and concepts, analyze their meanings, and determine what those words and concepts say about what the Indigenous group understood the agreement or legislation to mean. Where a jurist who does not belong to a specific Indigenous legal tradition has to interpret a discrete Indigenous-language word, phrase or concept as part of their legal reasoning, "the Indigenous element is severed from its linguistic context of enunciation and is usually expressed with English or French words that can only approximate its original meaning."8 This "severance" of the words, phrases or concepts from the broader Indigenous legal tradition from which they were birthed "deprives them of their connections to the network of meaning" that the Indigenous legal tradition provides.9 In other words, in order to correctly interpret an Indigenous language, the interpreter has to understand the context in which the language principle developed. This is incredibly difficult when the interpreter comes from a different culture and legal tradition. For example, many Indigenous languages have key words which are used as broad overarching principles that guide behaviour. These words, even if presented in a legal document or legislation alongside an English translation, can be unclear for those who do not have the requisite cultural knowledge or access to those who may be able to explain how they can act in accordance with those principles in specific situations.10
Many Indigenous languages are also verb-based, illustrating that in many Indigenous worldviews, everything is constantly moving or in flux.11 It can be hard to reconcile that with agreements which are meant to create certainty and solidify or freeze the rights and obligations of the parties. Many Indigenous words are also polysemous, meaning that the word has a range of translations and the meaning can change from context to context. Setting out a one-word translation may therefore create misunderstanding if the Indigenous word is polysemous.12 Relatedly, many Indigenous languages are polysynthetic, meaning that one word can act as a whole sentence and can create difficulties in interpretation.13
The consequences of misinterpretation in the judicial arena can be quite serious. Misinterpreting Indigenous words in agreements can alter the parties' intended rights and obligations under the agreement and effectively silence the voice of the Indigenous party to the agreement.14 As Danielle Delaney rightly pointed out, "[e]very time a judge interprets a legal text and develops a new understanding of the law, an equally violent force within that law kills alternative interpretations."15 In this way, judicial interpretation can have a coercive effect on Indigenous peoples.16 Relatedly, once a term is judicially interpreted under the common law system of 'truth via precedent',17 it may "freeze" that definition, leaving Indigenous languages unable to effectively adapt to changing circumstances. The ability to transform their legal tradition over time and keep the evolution of legal concepts via language going is necessary for the cultural survival of Indigenous peoples in Canada. Unfortunately, writing down Indigenous knowledge in a document intended to solidify ideas, positions and obligations can also result in "trapping the interpretation" and "ending the transformative process between storyteller and listener" which is so critical to the health and survival of many Indigenous legal orders.18
Indigenous communities must be aware of these risks and be prepared to take steps to minimize them when drafting laws and agreements that contain their Indigenous language.
b. Lack of equivalency or translatability
Another concern relates to other challenges of interpretation. Many legal words of art obviously will not have an equivalent term in an Indigenous language, and the task of the Indigenous language advisors will be to figure out how to use the appropriate combination of Indigenous words and concepts to approximate what the English term means. It is worth considering whether the risk of misinterpretation outweighs the benefit of having any one English legal term translated into an Indigenous language. Sometimes, it may be better to just leave the English word without a corresponding translation, because there just isn't one. But in the longer term, a community may want to begin to develop a 'dictionary of legal terms' in their Indigenous language. For inspiration, take a look at the Māori legal dictionary:
c. Community consensus
It must be kept in mind that the state of many Indigenous languages is fragile. Colonialism fractured the transmission of Indigenous languages and drove many of them close to extinction. The process of rebuilding those languages has led to differing interpretations and understandings of words and concepts within communities. This fracturing has been exacerbated by outside ethnographers and academics recording their own interpretations of what Indigenous informants have told them about the meaning of a word, such interpretations having unfortunately become authoritative to outsiders seeking to interpret the Indigenous language.
Different families can also carry different laws and teachings which are inextricably tied to language and words,19 and there can be variations between families with respect to the words or expressions that one family may choose to express an idea versus another family.20 There is diversity within Indigenous communities and people can hold divergent viewpoints around language and law which can impact the interpretation of words. Pursuing a single, authoritative interpretation of any word "runs the risk of silencing legitimate viewpoints" within a language community.21 Therefore, the Indigenous community may need to work quite hard to come to a consensus on the English translation of Indigenous language words.
d. Difficulties with orthography
Many communities have had orthographies imposed upon their languages by outside ethnographers and academics, and some communities may have ended up having their language set out in more than one orthography over many years. As a result, there can be some difficulty with (a) figuring out how to write out the Indigenous language, and (b) ensuring that English spelling, punctuation and grammar conventions are not absentmindedly inserted into the Indigenous language component of legal documents and legislation, as that can change their meaning. For example, many Indigenous languages don't capitalize their words.22 In my language, Hul'q'umi'num, we use 'unuhw or "glottal stops" which are typically expressed as an apostrophe mark. It can be tempting to add an apostrophe mark and then the letter "s" to make a Hul'q'umi'num word into its plural form, as is done in English. However, adding that to a Hul'q'umi'num word can fundamentally change the meaning of the word. Another potential issue that may arise is that typical word processing software may not contain the symbols or objects needed to properly adhere to whichever orthography the community has chosen to use. It may be necessary to seek outside supports in that regard.
- Best Practices
a. Include interpretation provisions:
An agreement or law which is drafted in part using an Indigenous language should clearly set out interpretive principles that will tell the reader how to interpret the Indigenous words. Interpretation provisions may benefit from a statement to the effect that any English translation provided for an Indigenous word shall not be considered a full and final translation. This allows Indigenous languages to continue to grow, evolve and adapt as communities continue the important work of revitalizing their languages.
If any other Indigenous communities speak the same language, whether or not it is a different dialect, the law or agreement should specify which Indigenous group the translations are intended to apply to, or set out that the translations therein are not meant to be authoritative for, or bind, other Indigenous groups in terms of their own translations, uses or understandings of the language.
b. Seek out authoritative language resources for use as a source of evidence for an interpreting court
A judge cannot draw meaning from and seek to implement the concepts contained within an Indigenous word language without an evidentiary basis; in other words, they cannot draw upon only their own linguistic knowledge to put forward an interpretation of an Indigenous word.23 Therefore, it will be critical that the Indigenous community be able to furnish ample evidence of the meaning of words in its Indigenous language. Here are a few sources communities may look to:
i. authoritative dictionaries, either in print or online;
ii. previous traditional use or similar studies and any community
interviews conducted for those studies;
iii. other published laws or agreements of the Indigenous
community;
iv. educational resources developed for school districts; and
v. university-level Indigenous language program materials.
In addition to the above, it is advisable to record elders and others talking about the Indigenous words as they are doing the work to develop English translations, because it is often during that work that most of the discussion around what the community understands the word to mean will occur. These resources will prove to be invaluable if the community ever needs to furnish evidence for a court respecting the meaning of a word in their Indigenous language. An Indigenous community may also wish to create an advisory board tasked with being the primary and authoritative interpreter for Indigenous language words.24
c. Be aware of how courts tend to resolve interpretative difficulties
When drafting, keep in mind the likely ways in which a court will handle interpretative difficulties and draft in a way which will assist a court with its interpretive exercise. Here are some of the most common methods, both from within and outside Canada:
i. The 'common denominator rule
In interpreting multilingual legislation, courts follow what is called the 'common-denominator rule' or the 'highest-common-factor' technique. This rule requires a court to give effect to the semantic meaning that is common to both languages, and to ignore any meaning that is only expressed in one language version. In the multilingual statutory context in Canada, any ambiguity in difference of meaning is to be resolved by settling on the meaning that is common to, or shared by, the different texts.25
ii. The 'shared meaning rule'
Other rules that have been employed to resolve ambiguity in multilingual enactments include a shared meaning rule where says that if the text in one language conveys a broad meaning and the text in the other language conveys a narrower meaning that falls wholly within the broader meaning, the narrower meaning will be preferred.26 However, in the Indigenous context, where some words can have specific meanings that can take over an hour to fully communicate orally, injustice may easily be done to an Indigenous group by employing this rule.
iii. The 'culturally sensitive purposive approach'
In New Zealand, Indigenous language interpretation by the courts is still in its infancy, but in terms of multilingual statutes (Māori and English), New Zealand scholars have predicted that courts will ultimately resolve multilingual inconsistencies by adopting a purposive but culturally contextualized approach designed to ascertain the 'true intent' of the provision.27 This approach is similar to the one mandated by the Vienna Convention on the Law of Treaties, which provides that all multilingual texts are equally authoritative; however, in cases of a persistent 'difference of meaning' between texts, the meaning which best reconciles the texts, having regard to the object and purpose of the document, prevails.28 These principles are transferable to multilingual agreements and statutes in Canada.
iv. Contextual approach
In New Zealand, courts have supported the use of expert translators, consulting Māori dictionaries, and "take notice of appropriate historical, sociological, anthropological, and etymological evidence" on the question of a Māori word's meaning.29 Canadian courts are likely to do the same with respect to Indigenous languages.
v. Ambiguity resolved in favour of non-drafting party
There is a practice in international law of interpreting ambiguity against the party whose language the agreement is drafted in.30 While this may apply uncomfortably to the Indigenous context, and we have not encountered it being used in such a context yet, it is something to be aware of and always helpful to keep in mind that the more specific you can make the translation, the better.
d. Be prepared for discussion and disagreement
Creating Indigenous translations for English words, and vice versa, takes a lot of time and deliberation. Be prepared for the community to need to have a very thorough conversation amongst themselves. There will be disagreements. This is the important work of revitalizing Indigenous languages and letting them evolve to meet modern challenges.
e. Remember the fluency level of the community
When deciding to include Indigenous languages in legal documents, baby steps may be advisable. The whole agreement or enactment needn't be drafted in the Indigenous language. Using a few key Indigenous words in a document is better than none. It is advisable to primarily use terms and words that a majority of community members are familiar with or can easily become familiar with. Community fluency levels for many Indigenous languages is typically low. Members should be able to easily understand what their community is saying in these documents.
Lastly, remember the purpose of including Indigenous languages in legal documents and legislation. It is not performative or symbolic. It is the very real and hard work of cultural continuity and survival. Drafting in an Indigenous language helps to keep culture and teachings and Indigenous laws alive and able to be utilized and relied on to guide our behaviour.
Footnotes
1 Leanne Simpson, Dancing On Our Turtle's Back: Stories of Nishnaabeg Re-creation, Resurgence and a New Emergence (Winnipeg: Arbeiter Ring Publishing, 2011) at 49. Naiomi Metallic, Five Linguistic Methods for Revitalizing Indigenous Laws, (draft, accepted for publication in volume 68 of the McGill Law Journal, forthcoming) https://carleton.ca/rfng/wp-content/uploads/Five-Linguistic-Methods-for-Revitalizing-Indigenous-Laws-1.pdf at p 18-19.
2 See e.g., the Xwulqw'selu Watershed Planning Agreement between Cowichan Tribes and the Province of British Columbia: https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/2023-05-12_xwulqwselu_watershed_planning_agreement_-_cowichan_tribes.pdf Woodward and Company assisted Cowichan Tribes in drafting this agreement, which puts the Hul'q'umi'num language and Quw'utsun legal principles front and center.
3 Big River First Nation v Agency Chiefs Tribal Council Inc, 2020 SKQB 273 at paras 4, 16, rev'd 2022 SKCA 16.
4 See e.g., Tŝilhqot'in Nation ʔELHDAQOX DECHEN TS'EDILHTAN (ʔEsdilagh Sturgeon River Law)
5 Naiomi Metallic, Five Linguistic Methods for Revitalizing Indigenous Laws, (draft, accepted for publication in volume 68 of the McGill Law Journal, forthcoming) https://carleton.ca/rfng/wp-content/uploads/Five-Linguistic-Methods-for-Revitalizing-Indigenous-Laws-1.pdf at p 5, citing Report of the Royal Commission on Aboriginal Peoples ("RCAP"), Vol. 3, Gathering Strength at 564.
6 Julian R. Murphy, "Legislating in Language: Indigenous Languages in Parliamentary Debate, Legislation and Statutory Interpretation" (2020) 43:3 UNSWLJ 1006 at 1008.
7 Julian R. Murphy, "Legislating in Language: Indigenous Languages in Parliamentary " (2020) 43:3 UNSWLJ 1006 at 1014
8 Sébastien Grammond, Recognizing Indigenous Law: A Conceptual Framework, 2022 CanLIIDocs 1198 at p 6-7
9 Sébastien Grammond, Recognizing Indigenous Law: A Conceptual Framework, 2022 CanLIIDocs 1198 at p 7
10 Thomas Wilhelm Ahlfors, "Challenges related to the incorporation of Inuit Qaujimajatuqangit into legislation" (2018) I J Commonwealth Assoc Legislative Counsel 63 at 70
11 Naiomi Metallic, Five Linguistic Methods for Revitalizing Indigenous Laws, (draft, accepted for publication in volume 68 of the McGill Law Journal, forthcoming) https://carleton.ca/rfng/wp-content/uploads/Five-Linguistic-Methods-for-Revitalizing-Indigenous-Laws-1.pdf at p 18-19
12 David Moore, "Unfriendly Terms in Court: Aboriginal Languages and Interpreting in the Northern Territory" (2014) 8:12 Indigenous L Bull 8 at 8
13 Naiomi Metallic, Five Linguistic Methods for Revitalizing Indigenous Laws, (draft, accepted for publication in volume 68 of the McGill Law Journal, forthcoming) https://carleton.ca/rfng/wp-content/uploads/Five-Linguistic-Methods-for-Revitalizing-Indigenous-Laws-1.pdf at 22
14 This is similar to what Dina Lupin Townsend calls illocutionary silencing: Dina Lupin Townsend, "Silencing, Consultation and Indigenous Descriptions of the World" (2020) 37:5 J Applied Philosophy 781
15 Danielle Delaney, "Under Coyote's Mask: Environmental Law, Indigenous Identity, and #NODAPL" (2019) 24:2 Mich J Race & L 299 at 307
16 Robert Cover, The Supreme Court, 1982 Term-Forward: Nomos and Narrative, (1983) 97 Harv. L. Rev. at 40
17 Justin Evans, "Indigenous Australians: Language, and the Law" (2002) 15:2 Int'l J Semiotics L 127 at 138.
18 Danielle Delaney, "Under Coyote's Mask: Environmental Law, Indigenous Identity, and #NODAPL" (2019) 24:2 Mich J Race & L 299 at 318.
19 In the Coast Salish context, see e.g., Sarah Noël Morales, Snuw'uyulh: Fostering an Understanding of the Hul'qumi'num Legal Tradition (PhD thesis, University of Victoria Faculty of Law, 2015) and kwes'kwestin, "The Importance of Welcoming in Indigenous Culture" CLEBC Cultural Competency for Lawyers, Paper 1.1 (2018) at 1.1.4
20 Naiomi Metallic, Five Linguistic Methods for Revitalizing Indigenous Laws, (draft, accepted for publication in volume 68 of the McGill Law Journal, forthcoming) https://carleton.ca/rfng/wp-content/uploads/Five-Linguistic-Methods-for-Revitalizing-Indigenous-Laws-1.pdf at 12
21 Nigel Baker-Grenier, Nihkitimahkinawow ekwa Nihkitimahkisin: Pity and Compassion in Cree Law, 2021 11-1 Western Journal of Legal Studies 23, 2021 CanLIIDocs 812 at p 7
22 See e.g., kwes'kwestin, "The Importance of Welcoming in Indigenous Culture" CLEBC Cultural Competency for Lawyers, Paper 1.1 (2018) at 1.1.3
23 See e.g., R v Itturiligaq, 2020 NUCA 6
24 Naiomi Metallic, "Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation" (2022) 73 UNBLJ 133 at 153
25 R v O'Donnell [1979] 1 WWR 385, at 389 (Bull JA) (BC CA).
26 R v Daoust [2004] 1 SCR 217, at 231 (Bastarache J)
27 Julian R. Murphy, "Legislating in Language: Indigenous Languages in Parliamentary Debate, Legislation and Statutory Interpretation" (2020) 43:3 UNSWLJ 1006 at 1029
28 Julian R. Murphy, "Legislating in Language: Indigenous Languages in Parliamentary Debate, Legislation and Statutory Interpretation" (2020) 43:3 UNSWLJ 1006 at 1032
29 Julian R. Murphy, "Legislating in Language: Indigenous Languages in Parliamentary Debate, Legislation and Statutory Interpretation" (2020) 43:3 UNSWLJ 1006 at 1031
30 Sammy Matsaw, Dylan Hedden-Nicely & Barbara Cosens, "Cultural Linguistics and Treaty Language: A Modernized Approach to Interpreting Treaty Language to Capture the Tribe's Understanding" (2020) 50:2 Envtl L 415 at 422.
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