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Indigenous Legal Traditions: Introduction Notes

Indigenous Legal Traditions: Introduction

Overview of the Module

  • Course Title: Indigenous Legal Traditions: Introduction, LAW 101

  • Date: 1/3/2023

Relevance of Indigenous Laws

  • Quote from the Truth and Reconciliation Commission (TRC):

    • "In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada."

    • Call to Action #50

Videos in the Course

  1. Introduction to Indigenous Legal Traditions

  2. Research Units & Call to Action #50

  3. Methods of Indigenous Legal Traditions

  4. United Nations Declaration on the Rights of Indigenous Peoples

  5. Recent Legislation Changing our Canadian Legal Landscape

Duty to Learn Indigenous Laws

  • Justice Lance Finch's Statement:

    • In 2012, he declared that the legal profession has a "duty to learn" about Indigenous laws.

  • Truth and Reconciliation Commission (TRC) Statements:

    • In 2015, the TRC included Calls to Action #27 and #28 focused on integrating skills-based antiracism training, including learning about Indigenous law into legal education.

Distinction Between Legal Systems

  • Indigenous laws:

    • Different from the concept of “Aboriginal law” in Canadian context.

    • Indigenous laws are systems governing communities based on unique cultural principles, not merely subsets of Canadian law.

Defining Indigenous Laws

  • Characteristics of Indigenous Laws:

    • Focus on community relations and collective well-being.

    • Must be intelligible and debatable to be classified as law.

Legal Interaction Concepts

  • Internormativity (also called “intra-state pluralism”):

    • Refers to the interaction of different legal systems within the same jurisdiction.

  • Extra-state pluralism (constitutionalism):

    • A state recognizes another legal system but both operate independently.

Supportive Structures for Indigenous Legal Traditions

Indigenous Legal Research Unit, University of Victoria

  • Goals:

    • Assists Indigenous communities in re-establishing and revitalizing Indigenous legal traditions and governance.

    • Provides public toolkits and organizes workshops.

Wahkohtowin Law and Governance Lodge, University of Alberta

  • Objectives:

    • Uphold Indigenous laws and governance.

    • Engage in community projects and create resources to support Indigenous law articulation and practice.

Categories of Indigenous Law (Professor John Borrows)

  1. Sacred Law:

    • Laws derived from spiritual principles and creation stories, focusing on reverence for the Creator and ancient teachings.

  2. Natural Law:

    • Derived from the physical world's observation, regarded as written on the earth.

  3. Deliberative Law:

    • Developed through conversation and requires human interpretation.

  4. Positivistic Law:

    • Rules followed based on authority declared by individuals.

  5. Customary Law:

    • Evolved through repeated social interactions and behaviors adopted by communities.

Quotes on Indigenous Law

  • Chief Doug S. White III:

    • "Indigenous law is the great project of Canada and it is the essential work of our time…It is not for the faint of heart…all our futures depend on it."

Context of Indigenous Legal Traditions

  • Reconciliation and Jurisdiction:

    • Indigenous nations' sovereignty is often legally unacknowledged.

    • Discussion of cultural genocide and the need for recognition of Indigenous law's role in preserving culture.

Community Engagement Strategies

  1. Land-Based Learning Method:

    • Engages individuals through experiential learning to understand Indigenous principles.

    • Utilizes holistic experiences to grasp Indigenous law in practice.

  2. Community Embedded Method:

    • Identifies local laws often not codified, making implicit understandings explicit in managing conflicts.

  3. Narrative Analysis Method:

    • Employs Indigenous stories as case studies, requiring the laws to be intelligible and debatable to qualify as law.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

  • UNDRIP is an international human rights covenant highlighting the rights of Indigenous peoples globally.

  • Core Highlights:

    • Calls for protecting "Indigenous-specific" rights, ensuring equality with other peoples.

    • Contains 46 articles outlining states' obligations toward Indigenous peoples.

Historical Context of UNDRIP

  • 2007: UN General Assembly adopts UNDRIP with 144 supportive votes (Canada abstained initially).

  • 2016: Canada formally implements UNDRIP following the TRC's Final Report.

Important Legislative Acts

  1. Bill C-15: The United Nations Declaration on the Rights of Indigenous Peoples Act.

    • Aims to align federal law with UNDRIP principles, receiving Royal Assent in June 2021.

  2. Bill C-92: An Act Respecting First Nations, Inuit and Métis Children, Youth and Families.

    • Addresses child welfare, promoting culturally relevant practices for Indigenous children and families.

TRC's Calls to Action Focus on Child Welfare

  • Key aspects of Call to Action #1 include:

    • Reducing the number of Aboriginal children in care and ensuring social worker training on Indigenous issues.

Conclusion

  • Emphasizes the importance of engaging with Indigenous communities for meaningful partnerships based on respect and understanding of their laws and traditions. Continuous efforts in supporting Indigenous legal education and applications in Canada are essential for reconciliation and justice.