Sources and Scope of Indigenous Legal Traditions

2 Sources and Scope of
Indigenous Legal Traditions
linda liebenberg and michael ungar
When nation states can learn from and embrace the best traditions of
its peoples, they can be strengthened and become more unified. If this
process occurs in a fair, orderly, transparent, non-discriminatory yet
authoritative way the rule of law is reinforced in the process. The
blending and/or coexistence of legal traditions is possible. Many
countries successfully incorporate diverse legal traditions that respect
different ethnic, cultural, and national groupings.1 Some of these countries are bijuridical and include both civil law and common law
systems.2 Others are multi-juridical and include customary law
regimes alongside civil or common law.3 Canada should be counted
among these multi-juridical countries: it embraces common law, civil
law, and Indigenous legal traditions. Canada could be characterized as
a juridically pluralistic state because it draws on many sources of law
to sustain order.4 While civil and common law traditions are generally
recognized across the country, this is not always the case with Indigenous legal traditions. Yet Indigenous legal traditions can have great
force in people’s lives despite their lack of prominence in broader
circles.5 Indigenous legal traditions are a reality in Canada and should
be more effectively recognized.
There are many negative stereotypes in circulation regarding Indigenous law. Recognition can be enhanced if Indigenous laws are understood in greater detail, free from misleading characterizations. For
example, Indigenous peoples are diverse and their laws flow from
many sources.6 Understanding their communities’ legal foundations
can lead to a better appreciation of their contemporary potential,
including how they might be recognized, interpreted, enforced, and
implemented. The underpinnings of Indigenous law are entwined
Recto Running Head 23
with the social, historical, political, biological, economic, and spiritual
circumstances of each group.7 They are based on many sources,
including sacred teachings, naturalistic observations, positivistic
proclamations, deliberative practices, and local and national customs.
Note that I am specifically making the point that not all Indigenous
laws are customary at their root or in their expression, as people often
assume.
There are many sources of law within Indigenous communities.
Indigenous peoples hold many different views about the character and
practice of law, as is the case in Western legal theory. Indigenous
peoples hold diverse theories about what gives law its binding force.
Disagreement can be an important part of the law, as long as there are
sufficient convergences to produce continuous interim settlements.8
The civil and common law traditions are not disregarded because of
deep philosophical disagreements about their nature and sources. Differences of opinion are a part of the vibrancy and strength of Western
law because they provide for shifting appeals to legitimacy through
time, or even within a single case.9 When working with Indigenous
legal traditions one must take care not to oversimplify their character.
Indigenous legal traditions can be just as varied and diverse as
Canada’s other legal traditions, although they are often expressed in
their own unique ways. This chapter will explore Indigenous legal traditions by focusing on their varied sources. It is hoped that by categorizing Indigenous laws in this way readers will be better able to grasp
their complexity and understand the choices available to Indigenous
peoples when they exercise their laws. It is also hoped that this
approach will allow other people to see the choices they have in relation to Indigenous law in Canada.
A. Sacred Law
As in other legal traditions, some Indigenous laws have sacred
sources. Laws can be regarded as sacred if they stem from the Creator,
creation stories or revered ancient teachings that have withstood the
test of time. When laws exist within these categories they are often
given the highest respect. Legal traditions based on spiritual principles
form an important part of most every culture’s legal inheritance.10
While Canada’s legal traditions are becoming increasingly secularized,
one cannot deny the role of the metaphysical in our law’s formation.11
For example, the civil law and the common law have been significantly
24 Canada’s Indigenous Constitution
influenced by ideas about religion.12 The receipt of evidence and the
test for truth often rests on appeals to the divine.13 Our Constitution’s
preamble states that Canada is ‘founded on principles that recognize
the supremacy of God.’14
Within Indigenous legal traditions, creation stories are often one
source of sacred law. These accounts contain rules and norms that give
guidance about how to live with the world and overcome conflict.
Their reach can be quite expansive because they contain instructions
about how all beings should relate to specific territories. They are often
meant to apply over an entire region, and in some cases are universal
in their range. Due to their broad reach and revered nature, laws that
have sacred aspects at their source may be less flexible than laws
flowing from other sources. Similarly, their recognition, enforcement,
and implementation can often be regarded as foundational to the operation of other laws. Sometimes creation stories involve the formation
of the world; at other times they reference the founding of other significant habitations. One notable ‘creation story’ for some Indigenous
people describes how parts of Canada were formed through the application of Indigenous legal traditions. This is particularly apparent in
those areas where First Nations used their own laws in negotiating
treaties.
I encountered this view when working with Elders in Saskatchewan.
They spoke of their treaties as being sacred because they brought
Canada into existence within their territories. I encountered this viewpoint when I was asked to prepare a report on the meaning of the
‘peace and order’ clauses in the numbered treaties in the Canadian
West.15 This work was done through the Office of the Treaty Commissioner, and examined the nature of law within Cree, Anishinabek, and
Dene societies.16 The report also examined the peace and order promises within the treaties which spoke of the need to respect and apply
Indigenous law throughout the territories covered by these agreements. From a government perspective, the clauses said the Indians
would ‘maintain peace and order between each other and also
between themselves and other tribes of Indians or whites.’17 They also
said the Indians would ‘aid and assist the officers of Her Majesty in
bringing to justice and punishment any Indian offending against the
stipulations of this treaty or infringing the laws in force in the country
so ceded.’
In listening to the Elders speak about the meaning of these legally
binding promises, it was clear that they regarded the treaty as flowing
Sources and Scope of Indigenous Legal Traditions 25
from a sacred source. They did not rely on the written text of the treaty
to arrive at this conclusion. Because First Nations followed their own
legal traditions in creating treaties, their interpretation was that
treaties were made with the Creator as well as with the Crown. First
Nations felt encouraged in their view by the presence of Christian missionaries during the negotiations, and the Crown’s invocation of God
throughout their meetings.18 Elder Norman Sunchild of Treaty 6 said:
‘When [Treaty 6 First Nations] finally agreed to the treaty, the Commissioner took the promises in his hand and raised them to the skies,
placed the treaties in the hands of the Great Spirit.’19 Elder Jacob Bill
also of Treaty 6 commented: ‘It was the will of the Creator that the
White man would come to live with us, among us, to share our lives
together with him, and also both of us collectively to benefit from the
bounty of Mother Earth for all time to come.’ He further said: ‘Just like
the treaty, that’s what that is, one law was given, Indian and white, we
both gave something special, something to keep, something to reverence, just like the treaty, both Indian and white beneficiaries, we were
given a gift from the Creator. The Creator owns us, he is still the boss,
nothing is hidden … just like that little flicker [of fire], that little
flame’s going out, that’s the way the treaty looks, but now that we are
sitting here it seems like we need a big flame so we can revive our lives
and our relationship, just like we’re trying to revive this life so that our
young people will have a good life for a long time, for many generations to come. That’s why we are here, that’s what the Elders seen a
long time ago, if the white man listens he too will benefit, a long life
for his children and his future generations because he, too, won’t sin
[pastahowin], he will not feel the brunt of that whip that the Creator
has. Nothing will be hurt if both sides start talking to each other
as beneficiaries of the treaty.’20 Some Indigenous laws have sacred
sources and the numbered treaties are an example of this type of law.
The laws surrounding Canada’s formation in many treaty territories
are profound because they are meant to encourage the spiritual, moral
and legal capacities of all the people who would come to live here. The
sacred nature of the treaties is one reason why many First Nations
would not consider abandoning them despite generations of government neglect. It would be a violation of the Creator’s law, sacred law,
to turn away from their promises to him and others in maintaining
peace and order throughout the lands on which they lived.
This view of Canada’s creation potentially challenges the approach
of some critics who may regard Canada’s existence in treaty areas as a
26 Canada’s Indigenous Constitution
transgression of rather than an application of Indigenous law.
However, the fact that treaties helped to bring Canada into existence
within certain areas should not for that reason alone be regarded as
contrary to Indigenous law. Many things, including treaties, can be
considered sacred even if they are not given the respect they deserve.
However, to appropriately clarify this issue it should be acknowledged
that there are some people who regard Canada’s creation as profane
and understand their history very differently from that taught by some
Elders in Saskatchewan. For example, many Haudenosaunee of the
eastern Great Lakes do not regard themselves as participating in the
creation of Canada. Instead, they regard their treaties as bringing their
Confederacy into an alliance with the Crown.21 As such, many Haudenosaunee people would resist being labelled as Canadian citizens
because of their distinct status. For this reason they would not likely
regard Canada’s creation as a sacred event. Another prominent exception to Canada’s creation being regarded as sacred is found within
British Columbia – where historic treaties were rare. First Nations in
this region would have a hard time accepting claims that Canada was
formed through promises to the Creator by reference to their laws. In
their case, other people moved into their territories and established
governments without their formalized participation and legal consent.
In this light, the harsh injustice of British Columbia’s resettlement can
hardly be22 regarded as a sacred event. There are other places in
Canada where First Nations have suffered a similar fate and thus
would look skeptically upon claims that Canada’s creation flows from
a sacred source. Finally, a sacred view of the treaties might also be
somewhat problematic from a certain government perspective, as
demonstrated by arguments often made by government lawyers who
give treaties the narrowest possible technical interpretation in order to
increase the Crown’s authority relative to the Indians. Some might
even view treaties as filled with fraud, duress, and manipulation – or
as expedient temporary bargains, designed by the Crown to separate
Indians from their lands and resources for the lowest possible price.
However, despite these very real challenges there are large areas of the
country where treaties between Indigenous peoples and the Crown
referenced Indigenous traditions. The fact that Canada’s creation is not
universally regarded as flowing from a sacred source does not undermine the laws of those First Nations who see things differently. For
people in these spaces, treaties can be regarded as sacred creation
stories about Canada’s formation if placed in their best light.
Sources and Scope of Indigenous Legal Traditions 27
Professor Noel Lyon, who taught for thirty years at Queen’s Law
School, summed up his interpretation of the sacred nature of
Saskatchewan’s First Nations’ Elders views on Canada’s law in the following fashion: ‘As I’ve listened to the Elders, I have begun to understand that what I’ve learned about Aboriginal peoples and their situation in Canada has largely come from written sources, from books, and
there are a lot of things that were embedded in me in my legal education that I haven’t overcome. The most important one, I think, is that
law school indoctrinated me with the belief that the Crown is allpowerful, and I think that’s a real problem, because I think legal education, it may not be that bad today, but I think there is a tendency to
regard the Crown almost in the way that the First Nations people
regard the Creator, as being the source of all things. And from that
flows the proposition that the treaties are seen by the non-Aboriginal
community as just another body of laws that define the status and
rights of Aboriginal peoples, rather than seeing the treaties as a nationto-nation partnership, inter-societal law … It had never occurred to me
until Elder Crowe said this yesterday or the day before: that the right
of the white people to be on this land is founded in the treaty.’23 From
this explanation one can see how treaties can be regarded as a sacred
creation story. As such, they join other Indigenous laws that flow from
sources that are revered or most highly respected.
B. Natural Law
Aside from sacred sources, Indigenous peoples also find and develop
law from observations of the physical world around them.24 When
considering laws from this source, it is often necessary to understand
how the earth maintains functions that benefit us and all other
beings.25 This approach to legal interpretation attempts to develop
rules for regulation and conflict resolution from a study of the world’s
behaviour. Law in this vein can be seen to flow from the consequences
of creation or the ‘natural’ world or environment. Indigenous peoples
who practise this form of law might watch how a plant interacts with
an insect, and draw legal principles from that experience. Others may
study how an insect interrelates with a bird, and take legal guidance
from that encounter. Some might examine how a certain bird relates to
an animal or another bird and see standards for judgment in this relationship. There might also be analogies drawn from the behaviours of
watersheds, rivers, mountains, valleys, meadows or shorelines to
28 Canada’s Indigenous Constitution
guide legal actions. As such, these laws may be regarded as literally
being written on the earth.26
Note how Indigenous definitions of natural law may at times have
a somewhat different emphasis than what is found in many leading
natural law theories within Western jurisprudence. The separation of
man from nature may not be as stark as in Aristotle’s philosophy,
where man ‘alone has any sense of good and evil, of just and unjust,
and the like.’27 There may also be less emphasis on ‘right reason’ as
universal, and the measure of law’s commands and prohibitions, as in
the Roman jurist Cicero’s works.28 Furthermore, while Indigenous
legal theories about natural law can be diverse and certainly overlap
with Western legal theory, there may be less of a belief that living
within nature is impossible for human beings without some profound
human political intervention, a belief reflected in the works of
Thomas Hobbes, Jean-Jacques Rousseau, or John Locke.29 In contrast
with many Western theorists many Indigenous societies do not act in
the same way to restrain nature, because they find more to embrace
within it. Finally, perhaps many Indigenous peoples might de-emphasize particular Western natural law theories (if they were conscious of
them) because these theories so often provided the justification for
Indigenous peoples’ dispossession.30 For many Indigenous people,
the casebook for learning natural law requires an intimate knowledge
of how to read the world;31 understanding natural law from this point
of view does not require an intimate knowledge of how to read legal
philosophy.
I have experienced this form of legal reasoning in my own life. My
mother is an Elder on our reserve and possesses a sound knowledge of
the world immediately surrounding her. She is a person who studies
and interprets nature’s laws for her family’s benefit. Not all legal traditions within Indigenous societies are immediately state-focused.
Authority can be based upon kinship and family networks. My mother
does not have an education beyond grade eight because she ran away
from home at an early age due to family challenges and the threat of
removal to a residential school. Despite this lack of formal education,
perhaps even because of it, she is one of the wisest people I know. She
has an unquenchable thirst for learning. Her knowledge of the earth
around her is profound. She frequently talks of her experiences on the
land and relates how her perceptions could guide our actions as a
family. When we do not follow her judgments we find that we are
often in breach of important environmental laws.
Sources and Scope of Indigenous Legal Traditions 29
For example, in the summer my mother watches for the return of the
monarch butterflies and notes how they seem to be scarce when the
milkweed plants are fewer in number. Of course she understands that
their decline may be attributed to other factors; she is very respectful
of scientific explanations and understands the profound complexity of
natural forces. However, if no other explanations are forthcoming, and
if there are fewer milkweeds on hand, she will inevitably urge us to
protect and increase the number of milkweeds around our house. If we
do not, she says we will see fewer monarch butterflies. We will also be
less likely to enjoy the beauty and variety of other plants that the existence of these butterflies will eventually help to flourish. For her, recognizing and protecting the relationship between butterflies and milkweeds is a principle of natural law. She is our family’s prime jurist in
such matters because she helps us understand the specific obligations
we have in the territories surrounding our home on the reserve. She
talks about many other plants besides the milkweeds and will tell us
stories about what they teach us.32 Then she usually takes the principle up one notch and observes that if we have a smaller plant population this usually means we will have fewer bees and other insects in
the area. Their absence might affect the availability of fruits and berries
in the fall and thus negatively diminish the variety in our diet during
that season. My mother also says that fewer insects can lead to fewer
birds, and thus we would find less harmony and song in the trees
around us. She believes that, for our family, their diminishment affects
our emotional outlook in a negative way. She says that we need to hear
the birds to know more about ourselves and our environment. When
she has been gravely ill, and barely able to leave her home, the songs
of the birds have been a source of healing for her. It is thus no surprise
that she believes that birdsong is vital to her family’s well-being, and
thus she watches to ensure we do not do things that will weaken the
so-called weeds in the fields and roadsides surrounding our home on
the reserve. She has always lamented the use of pesticides and the creation of monocultures in our territories because she feels they negatively affect the plants, insects, birds, and humans on their own terms,
and in their relationships with one another. This form of environmentally based family law can be a significant source of legal regulation.
I have heard and read similar teachings and stories from other
people around my reserve at Cape Croker. I can remember the time
when I more fully realized that the environmental stories I had been
hearing for most of my life were one of the sources of law at home. I
30 Canada’s Indigenous Constitution
was just about to begin teaching at Osgoode Hall Law School when I
was invited to a discussion about Anishinabek constitutional and environmental law after our annual late summer pow-wow on the reserve.
It was a hot August weekend and we had assembled in the Maadookii
Senior’s Centre to discuss how we might regulate our fisheries and
overcome conflict with our peninsula neighbours, who were suspicious or angry about how we would practise conservation. About
twenty people were in attendance, including Elders, band councillors,
schoolteachers, fishermen, and some youth who were home from university for the season. We had recently won a significant case that recognized our treaty right to fish for commercial purposes around the
Bruce Peninsula in Georgian Bay.33 While this was an important
victory for our people, non-native fishers were concerned that we
would deplete the stocks and disregard provincial conservation laws.
We even experienced some violent backlash from a small number of
them in the surrounding towns and communities, as our boats were
burned and our fishermen were publicly threatened. Everyone assembled wanted to find ways to regulate our own people’s use of the
resource and assure the broader public that we would not be overfishing because we had laws that penalized this kind of abuse.
As the meeting began, Elder Basil Johnston took the floor for most
of the morning and spoke of the world’s creation in our territory. He
spoke of how the sun, moon, and earth came into being. He related
how the first plants, animals, and humans lived peacefully together on
the earth. Each being that came to life had a story attached to its
genesis, and these stories taught about how each was to be respected
and how we were to best relate to them. As I listened to him, I understood he was speaking about the natural sources of our laws and how
they could teach us about what was required of us to regulate our
behaviour. After some time, he came to the matter at hand: the right to
fish. He spoke about how whitefish had been central to our society for
generations. He referred to these fish by their Anishinabek name,
adigmeg, which translated means ‘caribou of the sea.’ He then told us a
story about them. He said the fish would roam where they wanted,
and would fail to live in the adjoining waters if they were offended by
our overuse or if we desecrated their underwater homes. At this point
a fisherman joined the conversation and said that he had witnessed
just such an offence when lake trout had been crossed with brook trout
and introduced as ‘splake’ into the waters of Lake Huron at the behest
of so-called sports fishermen. The splake did not have the same strong
Sources and Scope of Indigenous Legal Traditions 31
natural enemies and thus they more successfully competed for the
same resources as the whitefish, with the result that most whitefish left
the area for a time.
At that point, someone else entered the conversation to indicate a
way in which our own fishers might offend the fish. There was some
concern that certain of our own First Nations citizens would abuse the
whitefish. An Elder, Winona Ariaga, told of her remembrance of how
her grandparents only took fish from the waters in selected seasons,
and at limited times. She said that she was told that if we troubled
adigmeg by taking them all year long, it would lead to their disappearance. She said this was one reason the old people diversified their economic pursuits and engaged in sugar maple extraction in the spring,
hunting in the fall, farming in the summer, and fishing in the remaining intervals. She said no one should take fish all the time, during
every season. Her observations were rooted in the long experience of
our community’s interactions with the natural world, from which she
drew principles to guide our discussion. Her teachings were also
intermingled with personal observations of the lake, land, fish, and
people.
After all these viewpoints had been expressed, it was suggested that
the band council should approach the provincial government to determine whether they would be willing to enter into an agreement that
respected our laws but also satisfied the provincial authorities that we
would not overfish the lake. Many Elders and fishermen put forward
their views about what would best protect the fish and still ensure a
prosperous livelihood for members of the community. The band also
insisted on hiring their own professionally trained ichthyologist to
ensure that the latest science would be incorporated into their laws. In
1999, an agreement was concluded that allowed some space for our
laws in the regulation of our traditional territories’ fisheries.34 While I
am not completely sure if or how our August meeting had an effect on
these subsequent developments, I do feel that the broader issues we
canvassed reinforced the determination to act in accordance with the
laws as we interpreted them from the world around us. The legal traditions we reviewed certainly helped to regulate the behaviour of the
fishermen I knew.
Perhaps a more public example of law being derived from the environment can be found in the trial of the Delgamuukw v. Attorney General
(British Columbia) which took place in British Columbia in the early
1990s.35 In this case, Justice McEachern of the British Columbia
32 Canada’s Indigenous Constitution
Supreme Court heard evidence about the Gitksan peoples’ historic use
of land in the upper Skeena River area, around Seeley Lake. Over one
hundred years prior to the Delgamuukw case, Gitksan Chiefs from Gitwangak described their relationship to the land in natural law terms.
They said: ‘We would liken this district to an animal, and our village,
which is situated on it, to its heart. Lorne Creek, which is almost at the
end of it, may be likened to one of the animal’s feet. We feel that the
whiteman by occupying the creek, are, as it were, cutting off a foot. We
know that an animal may live without one foot, even without both
feet; but we also know that every such loss renders him more helpless.’36 This statement reveals how the Gitksan drew upon environmental observations to form legal principles to guide their relationships. Their concern about the implications of a fragmented approach
to watershed management led them to predict its crippling effects
upon the land and people. The analogy of territories to animals and
the lessons that are drawn from their use acts as a guide to legally regulate behaviour and minimize disputes.
One hundred years later, during the Delgamuukw case, the Gitksan
followed a similar pattern, referring to animals’ and peoples’ activities
relative to land to provide criteria for judgment. Elders gave evidence
of their laws through their adaawk, which are verbal records of their
group’s origins and experiences with others and the land.37 For
example, Elder Mary Johnson related an adaawk about an ancient
grizzly bear, a landslide, and the people’s transgression of natural
law.38 Her account contains principles about how people should
appropriately relate to the fish and contains an interpretation of what
would happen to them if they did not respect these beings. Her testimony was recorded by the court as follows:
After all the fishing is finished and all the hunting for – for mountain
goats and groundhogs and the mountain and all the berry picking is finished, then they got nothing to do, so the maidens would go and make
the camp at the lake, at the foot of Stekyooden, and they caught some
grouse … [A]fter they were caught many trouts, they cut out the back
bone of the skin, and tails are still on the back bone. And as they was
staying there, they learned the dances of the people and all the songs, and
the way they were – they move when they were dancing. So one time, one
young lady cut one of these back bone and put it on her head as a decoration while dancing. And she would happen to be near the – near the
lake, and she look at herself at the edge of the lake, and she saw it was the
Sources and Scope of Indigenous Legal Traditions 33
bone looks really, really beautiful and why she dances gracefully. So she
ran and told the others what she have found, and show them. Then they
all got back bones and decorated their heads with it and some of the
people used to come over and watch them and they didn’t put a stop to
it, and they smiled at what’s going on. So after they all went home when
it’s time to go home, the people of T’am Lax amit heard a terrible noise,
and they […] left the lake and the people watched where the noise comes
from, and they’ve seen some great big trees were throwing about the top
of the rest of the tall trees, and they just stood there wondering what happened, until it comes – there is a little stream that runs from the lake and
goes into the Skeena River, and that’s – and this thing followed the little
stream, tramping down the trees. And finally they see this great huge
bear, grizzly bear that they have never seen before. And the chiefs sent
messengers through the village to – after warriors, to have the warriors
ready, which they did. And not long after the messenger went out, all the
warriors came out with their spears and arrows and bow and arrow, and
hammers that are made with stone, all those from weapons that strong
young men use, they all come out bravely to meet this great grizzly bear.
And he gets to the water and swam across and – and they went in front,
they all went in front of him, but he is – he is a supernatural grizzly bear,
they call him Mediik, and whenever they are shot him with an arrow, the
arrow flies way up high instead and fall back down again and it hit the
warriors, and they were wounded. And this grizzly bear tramped them
until they were crushed to the ground, and goes through the village and
kills a lot of people. And after that he – he came – he turned and go into
the water again, follow the stream where he came from the first place. So
the brave warriors went to – to see where he went, and it goes into the
lake, disappeared into the lake. That’s why the wise elders told the young
people not to play around with fish or meat or anything, because the –
because the Sun God gave them food to eat and those who – just they
should just take enough to eat and not to play with it, that’s why this
tragedy happens to them.
Q. Did any of the people go back up the trail that this grizzly bear followed down the mountain afterwards?
A. Yeah. They went – they went to follow the trail and that’s when they
see that he disappeared, his track disappeared into the lake. So they
believed that it’s the revenge of those trouts, because they played around
with their bones.
34 Canada’s Indigenous Constitution
Q. And is that lake – do you know what that lake is known to the nonIndian today, the name of that lake?
A. They call it see Seeley Lake.39
Mary Johnson’s adaawk reveals how Gitksan Elders might use their
laws to communicate important principles about how fish should be
treated when they are harvested. Past environmental events can be
interpreted to provide future guidance to regulate people’s conduct.
For the Gitksan, as with many Indigenous peoples, the law is read
from the land. In Gitksan territory this occurs when one encounters
Seely Lake and sees the landslide created by the Giant Grizzly Bear
who rushed down the mountain to punish people for their wrongful
behaviour with the fish. Standards for judgment are recorded on the
earth. While Justice McEachern did not rely upon these accounts to
formulate his opinion in the Delgamuukw case,40 the Gitksan continue
to reference their adaawk and their other legal traditions to regulate and
guide their relationships.41
C. Deliberative Law
An especially broad source of Indigenous legal tradition is formed
through processes of persuasion, deliberation, council, and discussion.
While sacred and natural law might sometimes form the backdrop
against which debate occurs, the proximate source of most Indigenous
law is developed through people talking with one another. The human
dimension of these laws means that recognition, enforcement, and
implementation make them subject to re-examination and revision
through the generations. Indigenous law is not static and can move
with the times. The deliberative nature of many Indigenous laws
means they can be continuously updated and remain relevant in the
contemporary world. When Indigenous people have to persuade one
another within their traditions, they must also do so by reference to the
entire body of knowledge to which they have access, which includes
ancient and modern understandings of human rights, due process,
gender equality, and economic considerations. While contemporary
concepts will modify and be modified by very old principles and
processes, they will also remain distinct by virtue of their particular
cultural-legal contexts. Thus, since deliberative Indigenous laws draw
upon historical and current legal ideas, they can also more explicitly
Sources and Scope of Indigenous Legal Traditions 35
take account of (and even incorporate where appropriate) legal standards from other legal systems. They can be harmonized with or distinguished from the laws around them based on what counts as persuasive to the group involved in the debate. Since no Indigenous
person or community is completely detached from the world, many
influences will be brought to bear on Indigenous legal developments.
Deliberation aimed at making Indigenous law can occur in formal and
informal meetings and gatherings; in these settings laws can be constructed through highly structured or ad hoc means.
The deliberative nature of the Indigenous legal tradition is also a key
to resisting fundamentalist and dogmatic legal practices and ideas.
When I have discussed Indigenous legal traditions, some people unfamiliar with them have raised concerns about available safeguards and
protections for those who are most vulnerable within Indigenous societies. Often these concerns are based on how ‘backwards’ some Indigenous communities appear in their social relationships,42 particularly
given colonialism’s crushing weight.43 It must be admitted that Indigenous communities experience many pathologies flowing from the dysfunctions of substance abuse, sexual abuse, residential schools, economic dislocation, and non-Aboriginal political interference.44
Indigenous individuals can also make poor life decisions, like people
from any other group. These negative choices are often compounded
and made more destructive because of substandard government infrastructure and support within their communities. Such challenges can
make it difficult for certain communities to administer their legal traditions in healthy ways. The remedy for this problem lies in helping
these communities to heal themselves so that they are in a better position to develop and follow constructive and dynamic laws.45 Persuasion is most effective when people have confidence in one another’s
personal and social integrity; thus, healthier relationships can create
stronger legal systems because of the increased social capital upon
which they can rely.46 Social capital is the resource generated in group
relationships;47 it can provide important nourishment for Indigenous
law because it can foster trust and goodwill, and can engender mutual
obligations necessary for effective group action.48 Thus, as is the case
with all societies, Indigenous peoples need to attend to their socio-economic health to strengthen the effectiveness of deliberation within
their communities. Healthy participatory legal processes are an important bulwark against oppressive leadership and overbearingly inflexible laws.
36 Canada’s Indigenous Constitution
At the same time, while it is important to acknowledge the significant struggles some Indigenous communities face in revitalizing their
legal traditions, we must also inoculate ourselves against drawing
inaccurate and stereotypical conclusions about how Indigenous
people will apply their laws in a contemporary context. Indigenous
peoples are not ‘backwards.’49 Sometimes, when people say they are
concerned about Indigenous legal traditions, their worry is not as
much with the community’s social state but with the ancient nature
and connection Indigenous peoples have to their laws. I have been
asked: ‘Won’t the application of Indigenous law lead to injustice?’
When pressed further as to what they mean, people often think Indigenous law will inevitably demean women, deny due process, and be
inconsistent with democracy and cherished ideas about the rule of law.
While it is true that the application of Indigenous law may violate
individual rights, all legal systems face potential challenges in this
regard. Nevertheless, we must guard against stereotypes which might
cause us to see such problems as inevitable within Indigenous societies.50 Of course, as with any system, Indigenous legal traditions must
be attentive to foundational questions of human dignity to have any
chance of continued growth and acceptance. Fortunately, Indigenous
peoples are very aware of foundational principles of civil, political,
social and economic rights and responsibilities upon which legal
systems rest. In fact, they call on these ideas all the time in their fight
against colonial state domination. The development and application of
Indigenous law is unlikely to thrive unless Indigenous peoples themselves also express these core precepts within their own distinctive
systems. In fact, a large number of Indigenous people would likely not
accept the double standard of expecting colonial governments to
respect international human rights while their own governments
failed to recognize similar principles. I know I would not accept this
result in my own First Nation.
For Indigenous peoples to be persuasive in declaring and developing law they must incorporate human rights principles in some form
within their legal systems. These systems of human rights protection
may be found in their own historic laws and experience, as well as in
current human rights documents and declarations. The problem with
the Indian Act for many years has been its failure to incorporate human
rights standards.51 While the application of the Canadian Human
Rights Act may help to partially remedy this deficiency, a fuller solution would allow Indigenous peoples to develop their own legal tradiSources and Scope of Indigenous Legal Traditions 37
tions consistent with international human rights standards.52 While
obligations vary according to the international instrument in question,
Indigenous incorporation of these laws would include providing
remedies for breaches of human rights, along with educative initiatives, independent monitoring and complaints procedures. The selfgoverning adoption of international human rights instruments would
likely be more persuasive and generate greater loyalty within Indigenous communities than the forced application of another parliamentary enactment which further props up a discredited Indian Act. It is
just not acceptable to have a racist and sexist document such as the
Indian Act control peoples’ lives. The Canadian Human Rights Act does
not contain the level of detail necessary to overturn the Indian Act’s
central assimilatory premises.
Indigenous legal traditions will more likely facilitate dignity and
freedom if people inside and outside of our communities drop stereotypes about the timeless, past-tense nature of First Nations life and
laws. Of course, many time-revered practices thankfully remain and
will positively affect how our laws continue to develop. There is room
for ancient precedent in most legal cultures, including those based on
Indigenous traditions. At the same time, Indigenous peoples are situated within and increasingly participate in a global context, and many
of our laws reflect these diverse influences. Some traditions will eventually be dropped if they are not widely accepted within a contemporary Indigenous community. Indigenous traditions are syncretic, and
fused with ideas and practices from many sources. They adapt to
changing circumstances in accordance with the needs and priorities of
their members and in response to external pressures. Tradition is not
abandoned as new ways are introduced. In fact, it is renewed as it
combines with vibrant healthy influences from other worthy sources.
Indigenous law must continue to engage in conversations with other
legal traditions to stand any chance of continually being embraced by
a sufficient number people within our communities.
Fortunately, the fact that many Indigenous laws are based on deliberative processes means that non-aligned or dissenting viewpoints can
be taken into account in the law’s formulation. When any society identifies, proclaims, and enforces its laws, there is bound to be disagreement. Most legal systems that respect individual freedoms and dignity
must find peaceful ways to deal with opposition in their midst. This
requires that conflicting viewpoints be processed in a manner that is
conducive to orderly and respectful listening, discussion, and resolu38 Canada’s Indigenous Constitution
tion. In this spirit, Indigenous peoples often use circles to invite participation in developing legal standards. Circles are considered sacred
and represent the bringing together of people in an atmosphere of
equality, as they do not raise one person above another.53 In a circle
discussion, everyone is permitted to speak, although only one person
speaks at a time. Each must listen and wait his or her turn to respond
to others, in an orderly fashion from right to left. Circles are meant to
remind people of Mother Earth and their journey through life: from
the earth, to infant, to child, through adulthood to old age and back to
the earth. As such, circles incorporate environmental patterns in
human terms in many ways. Of course, circles can also be conducted
in a coercive manner if they become dominated by an unhealthy group
or individual, who may unduly pressure participants to give deference
to the viewpoints of the dominators. Relationships of power and hierarchy do not necessarily disappear when people make decisions using
a circle format. Those who make decisions in a circle setting must be
attuned to their potential for duress and must implement proper procedures for their conduct.54 Nevertheless, much deliberative Indigenous law development can be conducted through circles – such as
talking circles, healing circles, and reconciliation circles – if protective
procedures are present. Band council deliberations and Peacemaker
Tribal Courts can also use circles to create rules and regulations or to
process disputes.
I have participated in circles in which important legal decisions
were made and later enforced. Some of these circles have occurred in
the criminal law context and demonstrate how Indigenous legal traditions can become a part of and influence the law’s development in
broader Canadian society. Perhaps the most prominent example of
Indigenous legal traditions being used in an urban context is found in
the experiences of Aboriginal Legal Services of Toronto (ALST).55
ALST was established on 21 February 1990, following years of deliberation, debate, and discussion within Toronto’s Indigenous communities. A number of exceptionally knowledgeable and supportive nonAboriginal people such as Jonathon Rudin also contributed to the
development of ALST. The Native Canadian Centre of Toronto compiled the results of community consultations in the mid-1980s through
a Needs Assessment Report. Later in the process, prominent yet
humble Indigenous Elders gave ALST’s founders an important set of
traditional teachings and principles to guide their work.56 As a result,
ALST was established to strengthen the capacity of the Aboriginal
Sources and Scope of Indigenous Legal Traditions 39
communities and their citizens to deal with justice issues and provide
Aboriginal-controlled and culturally-based justice alternatives.57 It is
instructive to note that ALST’s existence flows from an inspiring combination of Indigenous and Western legal concerns and knowledge
that developed through persuasion, counselling together, and consensus-building.
The deliberative aspects of ALST are also present in the program’s
daily operation. For example, ALST runs a Community Council
Pogram which draws heavily on dialogical sources of Indigenous
law.58 The Community Council is a criminal diversion program for
Indigenous people who live in Toronto and are accused of criminal
behaviour. The project provides justice alternatives and brings these
individuals before men and women who are trained to deal with criminal law issues from an Indigenous legal perspective and who represent a cross-section of Toronto’s Indigenous population. In performing
their work, the Community Council focuses on consensually developing a plan to allow the accused person to take responsibility for his or
her actions. The council also develops plans to address the root causes
of the individual’s problem and to facilitate reintegration into the
community in a positive way. The people at ALST believe the Community Council concept builds upon the way justice was delivered in
Indigenous communities in Central and Eastern Canada for centuries
before the arrival of Europeans to North America. As such, the initiative is a current example of Indigenous legal traditions in the present
context. ALST also does impressive work in attempting to introduce
Indigenous perspectives in test case litigation, law reform advocacy,
and for individuals before the courts in the Toronto area.59
While some Indigenous peoples use circles to conduct their legal
affairs, others prefer gatherings such as feasts and other large public
assemblies to encourage discussion and resolution of issues. Feast
structures are particularly prominent amongst societies in the Pacific
Northwest region, including the Haida, Tsimshian, Salish, Heiltsuk,
Tlingit, Nuu-chah-nulth, Nisga’a, Gitksan, Wetsuwet’en, and Kwakwaka’wakw. 60 They contain elaborate protocols to engage communities in important celebrations and decision-making issues.61 Some of
these feasts are best known as potlatches. While the Canadian government unsuccessfully tried to abolish them in the late nineteenth and
early twentieth centuries, they have remained an important legal tradition within most West Coast Indigenous societies.62 Some of these
feasts deal with property law disputes and build upon debate and dis40 Canada’s Indigenous Constitution
cussion to sort out boundary issues. Gitksan Elder Johnny David
explained that such disputes could arise from ‘one person crossing the
boundary of another person’s and when that happened, they usually
talked about it and that was the end of the problem.’63 If informal discussions were unsuccessful, a potlatch process could be initiated as
follows: ‘They [c]ould invite each other to a feast and gifts would be
distributed, and the person who crossed over a boundary would be
spoken to by the chiefs and after than happened, the problem was
solved and it never occurred again.’64 Hereditary chiefs direct the proceedings with guidance from the Elders, and the disputants build consensus under this structure by talking to one another through narrative, dance, music, and gift-giving. These deliberations help to create a
legal resolution that aims for reconciliation between the parties so that
they walk away as friends.65 Other feasts can deal with family law
issues,66 commercial disputes, or criminal law matters.67 There is
tremendous potential for the continued operation and development of
feasting structures and other large gatherings to develop law through
the exercise of Indigenous deliberative practices.
One particularly poignant example of feasting as an exercise of law
was brought to my attention by former graduate student Perry
Shawna. Perry worked with the Carrier Sekani Family Services
Agency (CSFS) for over sixteen years until his untimely death by heart
attack. Before teaching at the University of Northern British Columbia
and pursuing his LL.M. with me at the University of Victoria, Perry
worked with CSFS to offer community-based, professional, and culturally appropriate child and family services to the eleven First
Nations communities located to the north-east of Prince George in
British Columbia.68 While Perry was at CSFS, he worked with others
to ensure that Carrier Sekani laws and values were followed in reuniting Carrier Sekani children with their communities. During his tenure,
the Society implemented the procedures and principles underlying the
feast or bahlats structure to welcome back children and adults previously removed from their communities. In developing these feasts,
there was much discussion, debate, and consultation. Wide-ranging
dialogue was needed to ensure that the appropriate people were being
recognized for their efforts in helping the children of the community.
There was also a great deal of attention paid to learning and following
proper legal process at the feasting event. While the welcome home
feast was not a bahlats in the strict way of gathering community
members, bahlats values provided the main inspiration for the event.
Sources and Scope of Indigenous Legal Traditions 41
CSFS is now researching and developing a framework to deal with
family conflict through the use of Carrier Sekani legal traditions.69 This
process also involves deliberation and discussion through feasting and
other large community gatherings.
Of course, besides circles and feasting, there are also other ways in
which Indigenous peoples might gather together to develop their laws
through persuasion, council, and debate. For example, the Haudenosaunee of the eastern Great Lakes build and maintain their Great
Law of Peace on the consensus and agreement of six different nations.
While this legal tradition will be discussed in greater detail in the next
chapter, it is sufficient at this point to note that structured deliberation
is central to making binding legal decisions. For example, past and
future generations are considered and consulted as a formal part of
their society’s deliberations. A council of fifty chiefs chosen by clan
mothers takes account of the community’s concerns. They administer
confederacy business through a deliberative process by repeatedly
passing ideas across a longhouse fire to explore and analyse them
before taking action. This system also allows any Iroquois nation of the
Haudenosaunee Confederacy to request a meeting of the council.70
Clan mothers, youth, and others can also greatly influence decisions
through their involvement in bringing matters to council for discussion and resolution.71 Unanimity is most often necessary for the adoption of council decisions within the longhouse system of government,
which demonstrates the importance of debate and persuasion for
making law within Haudenosaunee legal traditions. The reinvigoration of Haudenosaunee law is one of the reasons the Canadian and
Ontario governments have had to work differently with the Six
Nations community near Brantford, Ontario in recent years, and their
laws’ influence was especially evident in the disputes concerning subdivision land in the Caledonia dispute in 2006–9.72
Today, perhaps the most visible example of Indigenous legal tradition developed through deliberation and persuasive debate occurs in
band council settings. Although the full expression of their laws is constrained by the harsh overlay of non-Indigenous rules under the Indian
Act, bands often, though sometimes inconsistently, use traditional
legal teachings to conduct their business and regulate their communities. The strictures created by the federal Indian Act do create problems
because they unnecessarily restrict and occupy jurisdictional space
and thus hinder healthier law-making procedures and patterns.
Indigenous law-making power through deliberation under the Indian
42 Canada’s Indigenous Constitution
Act is thus a poor reflection of what would be possible if this restrictive legislation were repealed. The Indian Act’s constraints could lead
to concerns that band councils cannot properly claim to administer
Indigenous legal traditions in the contemporary context because they
are a creation of the Canadian government and therefore only function
as a non-Indigenous law-making body. While it is true that band councils may owe some of their life to the federal government, it must also
be acknowledged that many continue to be recreated through community participation.
I have known many Indian Act elected chiefs and councillors who
reference their own First Nation’s legal values in debating and making
decisions under its structures. Furthermore, many so-called Indian
bands pre-existed the Indian Act and find their inherent governmental
power in their pre-Confederation authority. In that respect, they are
not a product of the Indian Act. In fact, in my own family, my greatgrandfather was both a hereditary chief and an elected chief under the
Indian Act.
73 Thus, some band councils are well situated to apply
Indigenous legal traditions and have a long history of implementing
their own community’s procedures and principles in their decisionmaking, despite the Indian Act’s strictures. Other band councils, such
as those found on the Six Nations reserve in Ontario, have very little
legitimacy in administering Indigenous legal traditions because the
government’s imposition of the band council has never been broadly
accepted by their community.
Indian bands can also operate on a customary basis. Section 2(1) of
the Indian Act defines an Indian ‘band’ as a ‘body of Indians.’74 Regulations under the Indian Act set out procedures for conducting band
council meetings,75 although section 2(1) of the Indian Act also states
that an Indian band council can be ‘chosen according to the custom of
the band.’ One in three Indian bands in Canada has chosen to organize their political affairs in accordance with their own customs. The
fact that Indian bands continue to function under a degree of their own
inherent authority demonstrates that, rather than extinguishing Indian
governance, the Indian Act could be interpreted as explicitly recognizing and affirming pre-existing law-making powers. Despite the potential for the Indian Act’s band council structure to allow for the exercise
of Indigenous customs, further steps should be taken to remove First
Nations from the Indian Act’s suffocating embrace. Operating as a
custom band under the Indian Act does not adequately facilitate the
growth and development of Indigenous law because the surrounding
Sources and Scope of Indigenous Legal Traditions 43
legislative framework largely assumes a relatively low level of decision-making ability and authority. More First Nations must escape
from the Indian Act to increase their law-making powers in accordance
with their own priorities. Nevertheless, in studying Indigenous legal
traditions in Canada, one cannot overlook the fact that band councils
are a rich source of Indigenous law, despite the problems that exist.
These examples demonstrate that many Indigenous legal traditions
develop in a deliberative fashion, through councils, circles, feasts, and
other informal and formal meetings and gatherings. Some of the great
civilizations in early northern North America were built on a very generous notion of participation in the law-making functions of society.
Many Indigenous societies today continue to encourage very broad
participation across their citizenry and might be regarded as being
radically egalitarian. Some societies are so generous and liberal in
extending personal liberties to their members that every being has a
legal right and practical opportunity to assist in the development of
their laws. At the same time, it should be noted that other Indigenous
communities may, at points, severely restrict participation as a result
of rules related to status, heredity, special accomplishment, or Canadian legal impediment.
Rules related to the scope of disclosure and participation must be
understood in order to effectively understand deliberation within
Indigenous legal traditions. Just as cabinet discussions in a parliamentary democracy may be privileged, some Indigenous legal procedures
can be analogously limited. Some of these limits exist because selected
Indigenous laws require special position, ceremonial recognition, and
hard work to receive them.76 Others may have limited application or
reception because of their hereditary nature. These limits may lead a
few to devalue Indigenous law as being secretive, non-transparent, or
undemocratic within its deliberative processes. However, before
jumping to such conclusions, one must remember the pragmatic limits
that also surround other Canadian legal traditions. Sometimes, restrictions on participation are important in preserving the orderly and
peaceful flow of our law’s development. At other times, a high degree
of specialization is necessary in order to understand, produce, or practise law. In this regard, Canadian legal process may be considered
somewhat analogous to the special positions, ceremonies, and hard
work required by some Indigenous legal traditions. On a more sobering note, the substantial resources, societal position, or family connections required for Canadians to receive legal education, practise law, or
44 Canada’s Indigenous Constitution
become a judge may not be far removed from the hereditary privileges
in some Indigenous societies. Indigenous legal traditions are not alone
in requiring special ceremonies, hard work, and family connections.
Fortunately, even most hereditary positions within Indigenous law
also require more of the individual recipient of power than simply
being born into the right family. When one balances the radically egalitarian nature of many Indigenous communities with the more limited
hereditary roles currently found within them, most observers would
quickly understand that heredity alone does not mean much without
that person’s own hard work and good reputation. Thus, family status
may not in itself be either a help or hindrance to participating in the
creation of law within Indigenous communities, and thus should not
be a reason to defeat fuller deliberation.
The points made in the past few paragraphs demonstrate that many
criticisms related to the scope of disclosure and participation within
Indigenous societies can be successfully addressed if widespread deliberation remains the heart and focus of a community’s legal system. In
such cases, the form of deliberation (hereditary office, etc.) would have to
give way to the substance (persuasion, choice, etc.) of what a community’s tradition protected in order for them to act consistently with their
laws. However, to fairly and even-handedly evaluate questions of participation within Indigenous legal traditions, it is also crucial to observe
that certain Indigenous legal traditions were, and continue to be, decidedly undemocratic and thereby restrictive of deliberation. Such traditions
are far from encouraging an individual’s free, uncoerced, and unfettered
involvement in the life of the community. When this is the case, these traditions should be renounced and discarded. Fortunately, this has generally taken place. For example, in the past some Indigenous societies practised slavery, and placed numerous limitations on personal rights and
freedoms.77 As in other countries, Indigenous peoples have forsaken
slavery and it is clear that this practice has no relevance to their contemporary legal traditions. While the past existence of slavery demonstrates
a high degree of social and legal organization, it no longer restricts any
Indigenous person in Canada from participating in the formulation and
application of their laws. Any remnants of such odious and abhorrent
past traditions have long since been repudiated and abandoned, because
they are inconsistent with contemporary norms and legal procedures of
Indigenous, Canadian, and international legal communities. Where
restrictions on deliberation do occur, slavery is rarely, if ever, at the root
of such injustice within contemporary Indigenous communities.
Sources and Scope of Indigenous Legal Traditions 45
Where participation in the creation of Indigenous law is restricted in
inappropriate ways, it is usually because some powerful individual or
group has used positivistic law to usurp authority from a community.
This issue will be discussed in the next section and is hopefully
implicit throughout this text because my intolerance for such behaviour is one of the most important reasons for writing this book. In all
that is contained herein, I am attempting to show that legitimate and
orderly ways can be drawn upon to restrain such people from inappropriately using laws found within our own traditions. At the same
time, I am also writing this book because, unfortunately, one of the
most profound sources of restrictions on broader participation within
Indigenous legal regimes today is Canadian law itself.78 The attitude
of most lawyers, judges, and parliamentarians towards Indigenous
law prevents its growth. That is, Indigenous law is regarded as secondrate or incomplete, if it is given any regard at all. For example, one
Chief Justice of a provincial Court of Appeal said to me in a personal
conversation: ‘You say Indigenous law exists; I don’t believe it for a
moment.’ Jurispathic attitudes can ‘kill diverse legal traditions’ if they
are falsely regarded as competing with the state.79 Furthermore,
Canada’s legislatures have not been very responsive or supportive of
Indigenous legal orders. The Indian Act, passed in 1876 to assimilate
and manipulate Indigenous legal traditions, severely restricts rules on
participation.80 It has also caused some First Nations to abandon specific legal traditions; others have subverted its precepts or incorporated them within their legal orders.81 Additionally, Canadian governments have restricted the general franchise for many Aboriginal
people, thus affecting the deliberative aspect of their legal traditions.82
When Canadian interferences with Indigenous legal traditions are
curbed, Indigenous laws can better facilitate Indigenous participation
in their own legal systems, as well as ensuring broader participation
within Canadian and international legal debates. Indigenous peoples
themselves can also take significant steps to cast aside traditions that
interfere with deliberation, persuasion and wide-ranging participation
in the creation of their laws.
D. Positivistic Law
Another source of Indigenous law can be found in the proclamations,
rules, regulations, codes, teachings, and axioms that are regarded as
binding or regulating people’s behaviour.83 The laws to which I refer
46 Canada’s Indigenous Constitution
are somewhat distinct from those above because they do not necessarily depend on appeals to the Creator, the environment, or deliberative
processes to possess their force. Legal traditions in this mode have
weight because proclamations are made by a person or group
regarded by a sufficient number of people within a community as
authoritative. Individuals who are seen to possess such power may be
hereditary chiefs, clan mothers, headmen, sachems, or band leaders.
Their laws may be regarded as positivistic because they rely more on
the authority and intelligence of those who issue them than on the
notion of creation, nature, or community deliberation. Philosopher
John Austin referred to legal positivism as being based upon
command. He said that those who have binding legal authority are
those who are ‘determinate rational being[s] or bod[ies] that the other
rational beings are in the habit of obeying.’84 Rationality is, of course,
present in every community and laws flowing from trusted individuals and groups are given due regard as a result. In an Indigenous
context, positivistic laws may be formally proclaimed in feast halls,
council houses, wampum readings, band council chambers, and other
such public settings. In announcing these laws, ancient and contemporary legal ideas can mingle together and become the basis for
bylaws, statutes, conventions, and protocols.
Some positivistic Indigenous legal traditions may once have been
explicitly connected to a larger normative system, but the reasons
underlying their original adoption might have been deliberately abandoned or forgotten as circumstances changed. Thus, laws that once
drew their authority from deliberation or creation may now be followed for different reasons – because some group or individual has
garnered enough power (through respect or fear) that others will now
follow their pronouncements without considering the reasons behind
the law’s development. I have met a few of these First Nations leaders
and groups in my travels throughout Canada, and they have managed
to effectively regulate their communities by drawing law from this
source. In these experiences, I have seen some wonderful people lead
with excellent results because of their kindness, knowledge, and care
for their communities. Unfortunately, I have also witnessed some
leaders who ‘command’ almost exclusively from their own narrow
material interests, without proper motive or beneficial effect.
I must confess that positivistic law as a source of authority (without
a broader justification for its use) prompts greater concern for me than
the other sources we have been discussing. My concern about statutes
Sources and Scope of Indigenous Legal Traditions 47
and commands not only relates to Indigenous legal traditions; I see
problems with the over-reliance on this source within common law
and civil law traditions too. My worry is that if a prominent leader or
group rules through this form of law for too long, without the restraining influences found in the other sources identified to this point, this
could lead to great corruption. The exercise of positivistic law potentially places too much authority in the hands of powerful individuals
or popular majorities without other checks, balances, or measurement
against a broader normative base. In time, the exercise of legal traditions through positivistic law could lead to abusive domination if the
person or group in authority does not submit to other normative legal
considerations. Thus, while positivistic law is a legal tradition with
force in Indigenous, common law, and civil law communities, my hope
is that it will constantly be tempered by other factors to ensure that
those who proclaim law do not become a source of oppression to those
who follow them. If Indigenous peoples who are governed through
positivistic law recognize that they can place their traditions on a
broader footing, they may be more inclined to choose those traditions
which further facilitate freedom and dignity, while still maintaining
crucial connections to their past. Fortunately, in my view, it is rare to
see positivistic law existing within Indigenous communities without
other sources of law being studied and followed. In fact, Indigenous
legal traditions are most often criticized for not having a so-called recognizable sovereign who can pronounce laws and command obedience to them. This, while not strictly true, does demonstrate their
decentralized operation.85
When positivistic laws operate without being couched in persuasion, deliberation, or a sound understanding of nature and what is
sacred, Indigenous peoples may be left with legal traditions that sound
like a chronicle of ‘dos and don’ts.’ Such laws are somewhat like commandments or codes from which much of the context for their development is no longer remembered or considered irrelevant. Examples
of these types of laws might be: ‘don’t swim in that part of the stream,’
‘don’t walk on that part of the glacier,’ ‘when you take something from
that place, you must leave something there from another place,’ ‘make
sure you walk around the perimeter of an area four times before you
leave.’ These laws are called positivistic in my formulation because
they may be followed by people with little understanding of why they
are binding, beyond their trust in or fear of the individual or group
who gave them the rules.86
48 Canada’s Indigenous Constitution
Along with traditions fashioned through deliberation, Indigenous
laws formulated in a positivistic manner might be most recognizable
to people schooled in other legal traditions. Most would probably recognize a leader or party’s commands or rules as a type of law, and
many can relate to the idea that sometimes such rules do not seem to
have much relationship to reason or morality. Many societies often
obey such laws because they are regarded as necessary to the proper
maintenance of order within their jurisdictions.87 When someone
breaks a law, our concern is not usually whether the law-breaker was
persuaded at some point to support the law but that they had failed to
obey it. When we know someone is flaunting the law, we may not
immediately care whether that person sees the law as being in
harmony with some broader sacred, natural, or deliberative source.
Rather, when a person acts contrary to the law, most people who
witness the disobedience are more concerned about their own safety
and self-interest, and with that of their neighbours.
Thus, when people feel threatened by illegal activity, they may not
immediately be concerned about larger questions of legitimacy surrounding the law. Therefore, in understanding positivistic law’s legitimacy, it is important to remind ourselves that such power flows from
a leader or group’s claim or endowment of reason and responsibility.
If there are disquieting concerns with a person’s use of tradition, that
person could be removed without offending other legal traditions that
may flow from deliberation, nature, or the community’s sense of the
sacred. The narrow base for legitimacy on which positivistic power
rests provides some measure of protection to Indigenous peoples who
may be in the grip of an autocratic leader. If the law in question is
merely a product of a powerful person or group’s misdirected preferences, then that law can be changed, or the person can be removed,
without any perceived natural or divine consequences. Such removal
will also hopefully strengthen the deliberative capacities and processes
within a community. This is not to underestimate the political
upheaval that could occur if a community, whose laws rest on proclamation alone, sought to remove their leader. It is, however, to acknowledge that bigger underlying normative changes would not necessarily
be required if power largely rested on personality or preference alone.
Thus, since the major consequence of disobedience in regard to positivistic laws would usually be a change in the political alignment of the
group, going against positivistic rules would not typically be seen as
a breach of sacred or natural law, and therefore would not directly
Sources and Scope of Indigenous Legal Traditions 49
challenge the deliberative consensus of the larger group. Thus, if an
Elder named chief or clan mother suffers from a loss of reputation,
people could cease to follow their rules without dire consequences. A
respected person or group’s fall from community favour does not necessarily create a crisis in the theory of law as would be the case if
someone violated the other forms of law developed in this chapter.
The person who loses credibility is often merely replaced by someone
else who can fill the leadership vacuum. Alternatively, if no one immediately arises to fill the role left by the formerly powerful person, other
sources of law, such as deliberation or custom, could fill the void.
On occasion, however, the consequences of a leader’s loss of reputation may be more complex and the subject of much greater conflict.
This could be the case if the formerly respected person or group were
to make claims that they were the only ones able to understand, interpret, or proclaim sacred or natural law, or were somehow indispensable to the process of law developed through deliberative sources. No
one person should be granted this degree of authority, but most legal
systems struggle to contain powerful groups and individuals who proclaim the infallibility, necessity, or inevitability of their rules. In such
cases, there could be a struggle to separate the leader’s personality
from their expression of the other legal sources followed by the community. It might be difficult to disentangle a powerful group’s claims
to authority from laws flowing from the Creator, nature, or from the
functioning of a deliberative council. The challenge of separating political power from legal sources should not be underestimated, because
the sources of law identified in this chapter are not as discrete as they
might appear. For instance, leaders will sometimes attempt to align
their positivistic proclamations with a normative system, such as has
been described in the preceding sections. In categorizing discrete
sources of Indigenous law, I hope to show that appeals to authority can
be based on ideas much broader than those often attributed to Indigenous legal traditions. However, just as critical legal scholars have
appropriately attacked claims that purport to separate law from politics,88 Indigenous legal traditions themselves are also enmeshed with
political considerations, as is the case in other legal systems.89 While
this chapter only attempts to identify sources of law that are more distinct from the community’s norms because they more firmly rest on
the force of an individual personality or group, on the ground, application tends to be messier in mingling the practice of politics and law.
Thus, there is always the danger that changes in leadership or group
50 Canada’s Indigenous Constitution
dynamics may make it more difficult to abandon rules that seem, at
first glance, to be tied to a person’s or group’s will-to-power through
their proclamations.
Therefore, while we must be attentive to the relationship between
law and politics within Indigenous legal traditions, these dynamics
should also not lead us to overestimate the problem of leadership conflict or change within Indigenous legal systems where positivistic law
is in force. Indigenous people affected by the waning of a certain set of
rules closely associated with one powerful person or group would still
have many other options to which they could turn in ensuring their
affairs remained ordered through the law. The availability of appeals
to the Creator, the environment, and reasoned consensus or custom
greatly assists communities when an individual or group’s proclaimed
rules or formerly binding teachings become less compelling for
reasons related to their reputations.
E. Customary Law
The final source of law discussed in this chapter relates to the variety
of Indigenous legal traditions often referred to as custom.90 Custom is
the label that most people would likely give Indigenous law if they
were unfamiliar with the complexity of these societies’ social organization.91 Of course, customary law is not peculiar to Indigenous societies.92 The common law, civil law, and international law also rely on
custom as a source of binding obligation for those subject to their operation.93 Customary law can be defined as those practices developed
through repetitive patterns of social interaction that are accepted as
binding on those who participate in them.94 Customary laws are often
inductive, meaning that observations of specific behaviour often lead
to general conclusions about how to act; as a result, the obligations
they produce are regularly implied from a society’s surrounding
context.95 An effective way of learning custom would involve examining or living specific routines and procedures associated with conduct
within a community and talking to people about why they felt obliged
to act in a particular manner. Such an investigation might lead one to
conclude that customary law rests heavily on an individual’s unspoken agreement about how rights and obligations will be regulated
between community members. The communally layered and individually intuitive nature of this legal form means that disputes are often
regulated through social pressures that distribute incentives and disSources and Scope of Indigenous Legal Traditions 51
incentives to act or refrain from acting in certain ways. Since customary laws are not always as explicit as other forms of law, their recognition, interpretation, and enforcement is often initially more difficult to
achieve when other sources of law intervene. However, this does not
mean that customary law should give way to other sources of Indigenous legal tradition. Customary law can be a creative source of law in
its own right, and in its proper context can be very effective in producing strong and healthy community relationships.
Indigenous customary law in Canada has been most strongly recognized in the context of marriage and family relationships. In Casimel v.
I.C.B.C., the British Columbia Court of Appeal held that a seventyseven-year-old woman and a ninety-nine-year-old man had legally
adopted their daughter’s thirty-year-old son according to Carrier law
and, thus, when he died, were entitled to death benefits as dependent
parents under the province’s Insurance Act.
96 This case rested upon the
finding that Carrier law allowed grandparents to be considered as full
parents in their customary regime, and that natural parents were no
longer considered to possess the rights or obligations of a parent under
this system.97 Furthermore, the court held that neither Canadian common law, nor federal or provincial statute, nor constitutional law abrogated Carrier customary law. In summarizing the reasons for upholding Carrier legal tradition, Justice Lambert wrote: ‘I conclude that there
is a well-established body of authority in Canada for the proposition
that the status conferred by aboriginal customary adoption will be recognized by the courts for the purposes of application of the principles
of the common law and the provisions of statute law to the persons
whose status is established by customary adoption.’98 There are
numerous other examples of Canadian courts and legislatures recognizing Indigenous peoples’ family law customs.99 Customary law can
also be found in matters related to Indigenous governance,100 land,101
and resource use.102
Another example of the recognition of Indigenous customary law is
found in recent land claim agreements signed throughout the country.
These agreements are significant because they implement an extensive
array of Indigenous customs across Canada. For example, the Labrador
Inuit Land Claims Agreement (LILCA), which applies to a large area of
coastal Labrador, acknowledges that Inuit law will be a significant
source of authority in the region.103 The extension of custom is possible because LILCA creates a central government that is controlled by
the Inuit and enables this government to pass binding laws that are
52 Canada’s Indigenous Constitution
constitutionally protected under section 35(1) of the Constitution Act,
1982.
104 The central Inuit government, called Nunatsiavut, works with
local Inuit governments and individuals, and operates in accordance
with the Labrador Inuit Constitution (LIC). The LIC, which was
approved by Inuit electors in an April 2002 referendum, proclaims that
‘Labrador Inuit customary law is the underlying law of the Labrador
Inuit and of Nunatsiavut for all matters within the jurisdiction or
authority of the Nunatsiavut Assembly.’105 Furthermore, LILCA also
accepts that Inuit customary law will have force throughout the region
and that ‘Inuit Law’ means a law of the Inuit Central Government,
which includes an Inuit customary law proclaimed, published, and
registered in accordance with part 17.5.106 To supplement this explanation of LILCA’s grant of law-making authority, the Labrador Inuit
Constitution defines customary law in the following terms: ‘The
customs, traditions, observances, practices and beliefs of the Inuit of
Labrador which, despite changes over time, continue to be accepted by
Labrador Inuit as establishing standards or procedures that are to be
respected by Labrador Inuit are the customary laws of the Labrador
Inuit and are referred to as Labrador Inuit customary law.’107 The continued development of custom alongside Inuit positivistic law demonstrates its importance as a source of law to the Indigenous peoples of
this area.
To help keep each source of law vibrant and strong, there are
detailed provisions within the Labrador Inuit Constitution and Labrador
Inuit Land Claims Agreement dealing with the interaction of customary
law and positivistic Inuit and Canadian law. For example, the LIC
includes a Charter of Rights and Responsibilities, which contains provisions relating to equality, dignity, security of the person, personal
integrity, religious observance, freedom of expression, elections,
freedom of movement, private land rights, freedom of trade, fair
labour practices, collective bargaining, environment, rights of children, water, health care, social services, education, language, culture,
housing, access to information, right to administrative actions, and
access to court.108 This extensive list of protections illustrates the scope
of Inuit law’s potential impact on the people to whom the LILCA will
apply. It is also noteworthy that the Inuit Charter shows that Inuit
people regard rights and freedoms as an important part of their legal
regime and do not consider such rights as being necessarily contrary
to their own customary laws. In fact, the Labrador Inuit Constitution
goes so far as to proclaim, ‘The Labrador Inuit Charter of Rights and
Sources and Scope of Indigenous Legal Traditions 53
Responsibilities does not deny the existence of any other rights or freedoms of Labrador Inuit, including those that are recognized or confirmed by Labrador Inuit customary law to the extent that those rights
and freedoms are consistent with the Labrador Inuit Charter of Rights
and Responsibilities.’109 The idea here is that Inuit customary law
might help to facilitate rights and freedoms within Nunatsiavut communities and should not be regarded as preventing their protection
and extension. Nevertheless, while there is a lively confidence about
the general harmonization of customary law with Charter rights and
responsibilities, there is also an acknowledgment that sometimes the
application of both legal sources might conflict. Therefore, the LIC contains provisions relating to the relationship between customary laws
and Inuit Charter rights in the event of an inconsistency; section 9.1.3 of
the LIC states that the Inuit Charter prevails in such circumstances. In
addition, the LIC also provides rules for the application of Inuit customary law alongside other Inuit laws passed by the central and local
governments. In fact, Inuit customary law is given paramountcy over
laws passed by the Nunasiavut government, unless that law is
expressly extinguished by them or contrary to their Charter.110
Other interesting provisions dealing with customary law within the
Labrador Inuit Constitution include provisions for the Nunatsiavut
Assembly to make laws for the codification and recognition of Inuit
customary law.111 This provision complements section 17.5 of the Labrador Inuit Land Claims Agreement, which states that the Nunasiavut
Government shall ‘maintain a public registry of the Labrador Inuit
Constitution, Inuit Laws, including Inuit customary laws in respect of
matters within the jurisdiction of the Nunasiavut Government and
Bylaws.’112 Furthermore, LILCA also provides guidance about how
Inuit customary law can be recognized and proved if it has not been
codified by the assembly. Thus, LILCA gives power to any judicial or
administrative authority to establish customary law as a question of
fact in any proceeding where the existence and content of such law
may be relevant.113 In time, this provision is bound to inspire a host of
new interpretations concerning custom through Labrador as the Inuit
court and various tribunals set up under LILCA more fully detail their
ancient law’s contemporary scope and content.
Section 9.1.7 of the Labrador Inuit Constitution even provides procedures to assist decision-makers with the task of proving custom. It
reads:
54 Canada’s Indigenous Constitution
9.1.7 A person alleging the existence or content of Labrador Inuit customary law under subsection 9.1.6(b) must prove the existence and the
content of the Inuit customary law on the balance of probabilities and for
that purpose may introduce:
(a) the oral and written traditions, observances and practices of the
Labrador Inuit, an Inuit Community or a relevant group of Labrador
Inuit;
(b) the opinions of Labrador Inuit elders or other persons who have
special knowledge or experience of Inuit customary law in relation to
the matter or would be likely to have such knowledge or experience if
such law existed;
(c) evidence of the consensus of the Labrador Inuit or community or
group of Labrador Inuit, as appropriate; and
(d) any other evidence that is relevant.
This procedure, which allows decision-makers to come to conclusions
about the proof of Inuit customary law, will likely prove to be an
important source for identifying binding legal traditions that have not
been previously committed to writing within the territory covered by
the Labrador Inuit Land Claims Agreement.
F. Conclusion
It should be noted that the distinctions between the different sources
of law outlined in this chapter can be defined too formally and separate from one another. In the real world, Indigenous legal traditions
usually involve the interaction of two or more of the sources described
above. In fact, in practice it would be hard to separate them from one
another. Furthermore, even in the somewhat artificial way they are
presented in this chapter, it is easy to see how the sources of law would
change as Indigenous communities worked with them. For example,
some aspects of customary law could become positivistic if codification is undertaken. Positivistic law could take on a deliberative source
if debate occurs about the appropriateness of rules derived from
custom. Similarly, sacred law might influence natural law, if people
relate to the Creator through natural processes. Once again, my point
in making the distinctions using these classifications (sacred, natural,
deliberative, positivistic, and customary) is to illustrate the complex
nature of Indigenous law. I am attempting to highlight the fact that
Sources and Scope of Indigenous Legal Traditions 55
Indigenous peoples have choices when they turn to their laws for
answers. While complexity and choice might make working with the
law appear more complicated, it should also provide greater opportunities for those interested in recognizing, interpreting, enforcing, and
implementing these laws. Understanding that a source of law is
natural, deliberative, positivistic, or customary might help those
people who think of Indigenous legal traditions as static to see a much
greater space for their application and development in modern
Canada. If Indigenous legal traditions are going to expand and be a
creative source of authority in Canada, we must reject the view that
Indigenous law lies at the bottom of the legal hierarchy, labelled as
simply customary. While it is true that many Indigenous laws are customary, this chapter has illustrated that they are much more as well. If
understood in this broader light, Indigenous legal traditions can be
regarded as living systems of law, open to human choice and agency,
within the context of the communities who will use them.
One of the ways Indigenous societies can best keep their legal traditions alive and connected to broader normative bases is by continuing
to emphasize the oral transmission of their laws. While Indigenous
peoples have been no strangers to recording their laws on paper
throughout the past century, many Indigenous societies prefer to
express their legal principles through oral tradition to maintain flexibility and relevance amidst changing circumstances. For many Indigenous societies, the spoken word ensures the law’s vitality because it
sustains connections to their community’s underlying cultural foundations. It also ensures that laws remain connected to a living community. This is in contrast with views of the written word, which
causes some Indigenous people to fear that law will become disconnected from their lived experiences and ordinary understandings if it
is reduced to paper. While most contemporary legal systems rely upon
the printed word to communicate important rules, oral tradition is also
an accepted part of the common law and civil law,114 and has a long
and distinguished history within Indigenous legal traditions.115 There
is no reason why oral traditions cannot remain strong even as Indigenous peoples write them down, as long as such writing is regarded as
supplementary to its existence in the hearts, minds, actions, and voices
of the people to whom such laws apply.
For many Indigenous people, the oral transmission of law is an
important protection against narrowing influences because it allows
for a stronger weaving of the past and the present. The spoken word is
56 Canada’s Indigenous Constitution
given pride of place because the transmission of law in orally-based
legal systems is bound up with face-to-face persuasion, reason, the
configuration of language, political structures, kinship, clan, economic
systems, social relations, intellectual methodologies, morality, ideology, and the physical world. These factors assist powerful individuals
and groups in knitting legal memories more tightly in their adherents’
minds, keeping the laws living in places other than dusty old books
full of overly technical rules. Rather than by being hoarded by a professionalized legal elite, laws can be transmitted through memorized
speech, historical gossip, personal reminiscences, formalized group
accounts, representations of origins and genesis, genealogies, epics,
tales, proverbs, and sayings.116
Furthermore, oral recitation is also an important legal principle
within Indigenous communities because it allows issues from nonIndigenous systems to be incorporated with flexibility. As noted
above, one must take care not to assume that oral proclamations of law
will contain no references to ideas from other cultures and legal
systems. Since oral communications necessarily take place in a contemporary context, Indigenous proclamations will be intermixed with
ideas from other sources. They may be lodged in commentaries relating to stories, songs, ceremonies, feasts, dances, scrolls, totems, button
blankets, wampum belts, et cetera. Clues to their historic existence and
to the way in which they are applied may be found in missionaries’
journals, government reports, settlers’ correspondence, the research of
anthropologists or other academics, newspaper articles, or fur trade
records. These sources can be valuable, though extreme care must be
used in drawing implications from them: their creators may have an
incomplete understanding of the cultures they observed, as well as
potential self-interest or bias.
Nevertheless, all of these strands of oral law, whether ancient or
more recently incorporated, can be woven together and reinforced by
mnemonic devices or other cultural practices, which also encourage
broader participation and normative links. Memory aids which may
record legal ideas can include wampum belts, masks, totem poles,
medicine bundles, culturally modified trees, birch bark scrolls, petroglyphs, button blankets, land forms, and crests. These mnemonic
devices can be supplemented by practices which include such complex
customs as pre-hearing preparations, ceremonial repetition, the
appointment of witnesses, dances, feasts, songs, poems, the use of
testing, and the use and importance of place and geographic space.
Sources and Scope of Indigenous Legal Traditions 57
The existence of these formalities and processes can help to ensure that
certain legal traditions are accredited within a community. It is very
rare to see oral tradition standing alone to communicate significant
legal obligations; oral tradition is often best given its meaning through
the larger cultural experiences that surround such proclamations.
Thus, oral tradition often blends the sources of law discussed in this
chapter – sacred, natural, deliberative, positivistic, and customary –
and keeps Indigenous legal traditions alive and growing.
58 Canada’s Indigenous Constitution


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