Framing aboriginal title as the (mis)recognition of indigenous law.

• Author: Moulton, Matthew V.W.
• Position: Canada

ABSTRACT

This paper makes the case that current Canadian political and legal frameworks are unable to fully recognize the inherent plurality in law, which includes Indigenous versions of law. In making this argument, the author uses the doctrine of Aboriginal title as a means to illustrate the conceptual and ideological hurdles that obstruct full recognition and Indigenous law. Some scholars call for the incorporation of Indigenous legal concepts within the common law, what is generally known as a weak form of legal pluralism. This paper discusses the internal limits of this weak form of legal pluralism, demonstrating the perversity of forms of recognition that force Indigenous claims through institutions that perpetuate their subjugation, as well as the ideological conscripts of Canadian legal institutions and discourse that continue the erasure of Indigenous law and organic Indigenous legal meaning. To do so, this paper illustrates the conceptual and ideological hurdles of a weak form of legal pluralism through the (mis)use of Indigenous law within the Aboriginal title paradigm. Given that the (mis)recognition of Indigenous law acts as a site for the reconstruction of colonialism, this paper argues instead for a transformative approach that respects Indigenous agency. In so doing, it argues that in order to fully respect and lay the foundations for the reconciliation of Indigenous legal orders, a strong legal pluralist model must be incorporated that decenters state law as law par excellence.

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Man is human only to the extent to which he tries to impose his existence on another man in order to be recognized by him. As long as he has not been effectively recognized by the other, that other will remain the theme of his actions. It is on that other being, on recognition by that other being, that his own human worth and reality depend. It is that other being in whom the meaning of his life is condensed.

--Frantz Fanon, Black Skin, White Masks (1)

1. INTRODUCTION

   The epigraph offered above is illustrative of the recognition project within contemporary political and legal theory. Recognition is largely the organizing ethos of equality-seeking groups in current political struggles. Such groups aspire to be recognized in some formal sense by those holding political and social power. In this way, as the above passage demonstrates, "justice" for equality-seeking groups requires recognition of their equal worth, and this recognition is constitutive of group members' sense of self. This demonstrates the importance of recognition as a political act. History is rife with such struggles for equal worth, including those of feminists, sexual minorities, and cultural minorities. As such, in a normative sense, recognition imports a positive acknowledgement of an other as an equal; the marginalized have been transformed into equals by the actions of those who hold power. However, while debates over recognition spur interesting propositions about politics and social movements, given the title of this paper the reader may be wondering what this has to do with law, or, more specifically, Indigenous law.

   The connection lies in legal pluralism. From a theoretical perspective, legal pluralism seeks to recognize the existence of two or more legal regimes operating within one geographical sphere. (2) In this paper, I seek to examine the relationship between two legal orders: Canadian state law and Indigenous law. (3) Specifically, I aim to analyze how Indigenous law can co-exist with Canadian law given that a recurring theme in the relationship between these two legal orders is the tension and miscommunication that often arises from Canadian state law's colonial and imperial claims of domination. (4) This tension reveals the struggle for Indigenous law to be recognized on a level with state law where neither is subjugated to, or dominated by, the other.

   Given the tension that often exists between Indigenous and Canadian law, some scholars argue that Indigenous law must be incorporated into broader common law structures. (5) In exploring this proposition further, this paper illustrates the tensions inherent in the recognition of Indigenous law within Canadian institutions. In order to have a fruitful intercultural conversation about how to best move forward to ensure that the organic nature of Indigenous law is protected, this paper illustrates the incapacity of the current moment to effectively provide meaningful recognition to Indigenous law. In elucidating this point, this paper utilizes the doctrine of Aboriginal title as a means to deeper illustrate the types of transformations required both ontological and epistemological--to move toward a more emancipatory, equal, and decolonized framework.

   In this sense, the methodological choice that I have made is one of conscious-raising. (6) In examining the relationship of Indigenous and Canadian law through the doctrine of Aboriginal title, I am able to expose the problematic ideological, operational, and evidentiary conflicts that inevitably result in the process of translating Indigenous worldviews to something that can be (mis)recognized by the common law. In so doing, I hope to illustrate how deeply embedded and pervasive colonial doctrine operates in the current moment, which I argue illuminates space for the re-examination of the relationship between Canadian and Indigenous law. What results is, I hope, a self-conscious reflection on the barriers that exist in instituting legal pluralism within Canadian legal and political institutions, frameworks, and discourses. (7)

   While I do tangentially address legal pluralism, this paper does not undertake any sort of theoretical exposition of, or make any stance on, legal pluralism, other than to note it as a fact. (8) Whether Canadian institutions wish to acknowledge it, by the very nature of Canada's colonial history parallel Indigenous legal regimes exist and operate within Indigenous communities. What my paper does attempt to do is move the legal pluralist conversation forward: it takes a critical first step in the campaign to incorporate and recognize Indigenous law to query how legal pluralism can be instituted within pre-existing legal and political structures. In other words, if Canada is legally plural, can current institutions--such as courts and legislatures--recognize Indigenous law within them? (9) This is important in confronting how to move forward on the legal pluralist project to value Indigenous law as something more than the "Aboriginal perspective". (10)

   First, I critically analyze recognition theory as a space to mediate Indigenous claims for recognition. This paper draws on both political theories of equality and difference that find their place in debates over multiculturalism in the 1990s and early 2000s with authors such as Nancy Fraser and Charles Taylor. I use these theories to affirm the continued importance of recognition theory in examining Indigenous claims for equality more broadly, as well as the nature of claims for the recognition of Indigenous law within Canadian institutional frameworks. This is important given the procedural imperative of recognition when Canadian legal institutions are presented with claims based on Indigenous law. Second, I expose the state's ideological commitments that run counter to Indigenous ways of being in the world. This paper adopts Roderick Macdonald's schema in arguing that Canadian institutions have adopted a largely positivist, statist, and monist conception of law that delegitimize Indigenous legalities. (11) Given this, I argue that Canada's legal institutions cannot recognize Indigenous law qua law if they adhere to a one-dimensional and monolithic vision of state law.

   I begin this paper introducing the reader to the common law doctrine of Aboriginal title. I use this framework throughout to guide my analysis and to proffer a doctrinal framework within which I will couch my theoretical arguments. My broad argument is that when presented with a claim to title based on Indigenous law, Canada's current political-legal frameworks cannot recognize Indigenous law on its own terms; claimants have to reconstruct Indigenous legal concepts in a way to accord with dominant legal discourse. Indigenous law, then, must be shaped to fit the state's view of what "law" is which strips it of its distinct and organic legal character. Within the doctrine of Aboriginal title, Indigenous law is largely dismissed in any meaningful discussion of whether Aboriginal title exists. While a piece of the evidentiary puzzle, Indigenous law can only be recognized by courts when Indigenous law comports with the Canadian common law. (12) This necessitates a rethinking of our sociopolitical frameworks if we are to fully institute pluralist praxis as a means to respect Indigenous law.

   In examining the failure of political theories of recognition to adequately address the discordance between achieving recognition and existing colonial power structures, my paper is critical of attempts to recognize Indigenous law through state institutions. By clinging to an obscene legal ideology, Canadian legal institutions perpetuate the erasure of Indigenous law and legal meaning. In a systematic fashion, Indigenous law is devalued and stripped of its organic legal character for the purposes of maintaining hegemony. Thus, recognition through dominant institutions and discourse is a veritable legerdemain and a form of misrecognition that acts as a site for the reconstruction of colonialism. Rather, the key to reconciliation is for Indigenous law to emerge organically, seen as an alternate and valid source of legal authority for Indigenous peoples.

   Given this bleak portrait of the current legal conjuncture, my paper seeks to begin the conversation on instituting pluralism by showing the deficiency of current frameworks. I argue that if Canadian institutions are to move forward on the legal pluralist...