Legal Pluralism and Indigenous studies - legal phil

Legal pluralism in Canada

• It has statues and common law that apply nationwide. At the same time, it has localized indigenous legal traditions

• Canada is a juridically pluralistic state

• A legal tradition is an aspect of the general culture of the community

• Canada’s legal pluralism involves the mainstream civil and common law as well as indigenous legal traditions

John Austin distinction between social norm and a law

• a law is a rule proclaimed by an authority that has the
  power to enforce it.

• A social norm is a tradition that is “observed spontaneously” and does not originate from an organized power

• Until then, “it is merely a rule of positive morality

• the absence of an explicit command by a centralized authority that are necessary under positivism make such traditions non-legal

• The positivists are here trying to limit the sources of law to statutes and courts
  

Doctrine of continuity

• Canadian courts have consistently affirmed the existence and validity of indigenous laws

• Further in that ruling, indigenous legal traditions
  continue to exist in the new nation – Canada, unless:

  1) they were incompatible with the Crown’s assertion of sovereignty,
  (2) they were surrendered voluntarily via the treaty process, or
  (3) the government extinguished them

Indigenous legal traditions

• Laws can arise whenever human interactions create expectations about proper conduct.

• The laws are embedded in a foundation of the customs and practices.

• Customary laws can be identified by examining specific routines and procedures relating to conduct within a community.

• Indigenous cultural and legal traditions are often interwoven and reinforced by certain practices
  

Indigenous sovereignty

• Indigenous sovereignty is about responsibility and relationship with territory and its human and nonhuman inhabitant 

• Indigenous sovereignty means community member acting for the good of the community 

• Indigenous thought opposes the conception of sovereignty as power and ownership of land 

• support for aboriginal sovereignty may be found in the common law traditions of the colonial governments

Indigenous natural law

• The indigenous sense of natural law is that humans can find legal and moral guidance from nonhuman nature including matters of sovereign relations 

• Unlike the Western sense of natural law the indigenous use of natural law is to say that nature is normative and offers moral guidance 

Difference between Indigenous and western land ownership

• Indigenous peoples proclaim an inalienable connection to the land. However, they do not see the land as something that can be individually owned and bought and sold as a commodity 

• A concept dating back to Hugo Grotius and John Locke, a piece of land is not owned until it is developed for productivity of some sort

• The Western conception of land ownership delegitimized indigenous land title 

• This allowed bast tracks of indigenous lands that were used for hunting to be proclaimed by European settlers who developed those lands for farming 

• Indigenous political communities were not considered to be genuine political communities because they did not protect private property rights over land 

Piccolo

• Many scholars, seeking support for indigenous sovereignty, turn to Western legal traditions, particularly the common law

• Samuel Piccolo critiques this view, stating that common law does not consistently support indigenous sovereignty, especially beyond matters of land title.

• that a more reliable foundation for indigenous sovereignty is found in natural law traditions, which align more closely with indigenous understandings of governance.