SPACES FOR SHARING: SEARCHING FOR INDIGENOUS LAW ON THE CANADIAN LEGAL LANDSCAPE.

• Author: Hanna, Alan

The interaction between multiple legal orders is complex given the violent historical impact of colonialism that informs these relationships in Canada. The context of multiple First Nations and Indigenous communities in Canada, and the dynamics of multiple relationships each containing variations of different and distinct legal orders, exposes the complexity of the interrelationality among them and with the Canadian state. (1) Yet, despite the arrival of foreign European systems of law beginning in the 17th century, First Nations have legal mechanisms for the governance and management of inter-societal (i.e., between societies of the same nation) and "inter-national" relationships. (2) It is up to Canada to determine its place in this inter-national web of legal relationships, a larger project to which this work aims to contribute. To consider how Canada might find its place, an action I argue will signal Canada's sincerity toward reconciling the Crown's assertion of sovereignty with the prior sovereignty of Indigenous nations within Canada, this paper explores how Canada's legal system is currently positioned with respect to Indigenous legal traditions. (3)

Identifying the opportunities for Indigenous legal traditions to flourish requires an analysis of the substrate and substance of the Canadian legal landscape. As such, this paper offers a survey of where Indigenous laws arise within the field of Canadian law. The survey begins with a review of the Crown's assertion of sovereignty, sovereignty's interaction with consent, and its resultant jurisdiction, the substrate upon which Canada's legal system is built. The substrate is integral to analysis, as it fundamentally shapes the discussion by offering explanations for why Canadian law is resistant to Indigenous legal orders, why it is reluctant to provide room for Indigenous laws within the state system, why First Nations are skeptical and hesitant to engage their laws within the Canadian legal system, and how First Nations and Canada may move toward a more inclusive and interrelational legal structure. Once a substrate of sovereignty and jurisdiction is rendered, the remainder of the paper provides a survey of the various spaces within the substantive Canadian legal system where Indigenous laws have been recognized. (4) These spaces are revealed in case law, legislation, treaties, and legal agreements. However, considering that these sources only show opportunities within the Canadian legal system, I also identify where Indigenous laws may operate outside Canadian law.

The analysis will specifically focus on British Columbia, where the assertion of sovereignty and resultant control of people, lands and waters is, according to my analysis, unsupported in English law, producing an unjust and unlawful squatter state on unceded Indigenous territories. This unlawful landscape is the substrate that has been laid atop the many Indigenous legal orders that existed at the time Europeans arrived, and through the cracks and spaces of which Indigenous laws occasionally manage to re-emerge. The Canadian legal landscape serves to inform this survey of the application of Indigenous legal orders by showing the irony in the Crowns resistance to accepting the validity of Indigenous laws, and subsuming them under the Canadian common law, when the substrate of the Crown's own legal system is itself assailable. The irony of control results from an assertion of dominant authority creating inequity between legal orders. Identifying the irony in this paper contributes to the history of challenges to the legitimacy of state authority, urging Canadian lawmakers to accept that making space for Indigenous legal traditions is a step toward healing past harms.

Ultimately this paper shows there is little room within the Canadian legal landscape, a landscape that is slow to provide change, that would allow for a full, respectful engagement with Indigenous legal orders. I argue that despite whether First Nations choose to participate with Canadian law, (5) Canadian governments and legal practitioners must reform the legal system to make room for Indigenous legal orders to take their rightful place in the substance of Canadian law. (6) This move would not only demonstrate a willingness for reconciliation on the part of the Government of Canada, but would also begin to shift Canada's legal system toward a more fulsome model that embraces the inclusion of all Canada's founding parties, the earmark of a meaningful relationship. To be clear, First Nations may choose not to have their laws placed in relation to the state. (7) Yet many seek to engage for a number of reasons in a variety of ways, including participating in decisions impacting resources or the environment, (8) working to halt continued opptession and state control over lands and waters, (9) and to be subject to laws that First Nations have a role in creating. (10) Whether First Nations choose to engage, or as is often the case, are forced to engage, Canada is at a moment in the collective colonial history where it must decide how to effectively engage with Indigenous legal orders.

SOVEREIGNTY

Sovereignty is the Crown's claim to legitimate authority over lands it claims, and its legal regime defends the sovereign claim against all other claims. (11) The operability of Indigenous laws in the context of the Canadian legal landscape is squarely rooted in an understanding of precisely what is being protected: the Crown's sovereign authority. Sovereignty as a western concept is the hierarchical model of a government's expression of political power over a defined territory, creating the need for a western legal system based on western political theories. According to Kent McNeil, European sovereignty of the 17th century "envisaged a world of equal, independent political units, each with absolute authority within its territorial limits and not subject to any external temporal power". (12) Although this Westphalian model of sovereignty relies on separate bounded spaces over which a single governing authority operates, the theoretical concept of sovereignty is flexible enough to allow for multiple expressions within a dominant state structure." Yet, Canada has long resisted overtly recognizing Indigenous nations' continued autonomy and self-determination. (14) In addition to being merely intransigent about its hold on authority and power in Canada, I suggest the Government of Canada's stranglehold on sovereignty is the result of the contested legitimacy of Crown sovereignty, with British Columbia its flashpoint.

ENGLISH POLICY AND THE PRINCIPLE OF CONSENT

English policy and practice in Canada was comprised of two parts: a claim of discovery and assertion of sovereignty over the land to establish the boundaries of the claim vis-a-vis other European powers; and the acquisition of an interest in the land through the consent of its Indigenous nations. (15) This policy and practice was carried out widely throughout Canada, and on the west coast before Confederation, but ended abruptly on Vancouver Island in 1852 with the Fort Victoria Treaties. The policy behind the Crowns entering into the Fort Victoria Treaties on Vancouver Island was clear: "purchasing without loss of time the native title to the soil of Vancouver Island". (16) Despite colonial officials knowing of and applying English policy regarding native title on Vancouver Island, political opinion changed based on the personal views of individuals in power. To Joseph Trutch, Chief Commissioner of Lands and Works, Indigenous people and land was oxymoronic. Under Trutch, the reserves that were surveyed under Governor James Douglas were to be reduced to only what was considered necessary for survival based on an English concept of property, because:

The Indians really have no right to the lands they claim, nor are they of any actual value or utility to them; and I cannot see why they should either retain these lands to the prejudice of the general interests of the Colony, or be allowed to make a market of them to Government or to individuals. It seems to me, therefore, both just and politic that they should be confirmed in the possession of such extents of lands only as ate sufficient for their probable requirements for purposes of cultivation and pasturage, and that the remainder of the land now shut up in these reserves should be thrown open to pre-emption. But in carrying out such a reduction of these reserves in the manner proposed, very careful management of the dispositions of the Indian claimants would be requisite to prevent serious dissatisfaction; firmness and discretion are equally essential to effect the desired result, to convince the Indians that the Government intend only to deal fairly with them and the whites, who desire to settle on and cultivate the lands which they (the Indians) have really no right to and no use for. (17) In addition to the violent impact this political position had (and has) on the people directly affected by it, a significant problem with the position is that it was incorrect. Not only did Canadian courts hold that Aboriginal title exists, (18) in 1875 the Government of Canada, by Order in Council, disallowed provincial legislation passed by the Government of British Columbia (the Province) which received royal assent on 2 March 1874. (19)

In support of his recommendation to the Governor General in Council to disallow the provincial legislation entitled "An Act to amend and consolidate the laws affecting Crown Lands in British Columbia," Canada's Minister of Justice, Telesphore Fournier, drafted a report to the Department of Justice (DoJ) giving his reasons. (20) The Act consolidated inter alia the "recording and pre-emption of lands, [and] the surveying and sale of them". (21) The Minister's concern was threefold: the Province was allowing settlers to pre-empt land without having obtained surrenders of title from the Indigenous...