AuthorLindberg, Darcy

When your ancestors came to this territory, Kiciwamanawak, our law applied. When your ancestors asked to share this territory, it was in accordance with our law that my ancestors entered into an agreement with them. -Harold Johnson (1) I. INTRODUCTION

According to nehiyaw (2) legal ordering, the legal conciliation that Harold Johnson references above is a responsibility towards the principle of witaskewin. Witaskewin encapsulates how we live together on a territory, and commit to mutually aid each others good living. It is an expansive principle, as it can relate to us as neighbours or inter-societally as nations and peoples. Inherent within the principle is a respect and engagement with nehiyaw legal traditions. As our history of treaty relations has taught us, Canada has not lived up to its end of witaskewin commitments in this way.

And just as it has departed from this vision, its reconciliatory path has long grown crooked away from similar visions of and responsibilities to other Indigenous legal traditions. While a plain understanding of reconciliation has promised paths towards redress and reparations for the historical harms and inequities experienced by Indigenous peoples within Canada, the magical quality afforded to Crown sovereignty within Canadian jurisprudence quickly stifles the legal arena of such promise. (3) On this magical reasoning, John Borrows succinctly notes:

If that land was owned by Indigenous peoples prior to the assertion of European sovereignty, one wonders how the Crown acquired title in that same land by merely asserting sovereignty, without a version of terra nullius being deployed. The Crown's claim to underlying title on this basis "does not make sense." Some kind of legal vacuum must be imagined to create the Crown's radical title. The emptiness at the heart of the Court's decision is disturbing. (4) This emptiness has grave results on the ground. It allows those who truly have the agency to enact good-faith teconciliatory measures, namely Crown politicians and their legal counsel, to be favoured with the heft of this legal weight on the chest of Indigenous peoples in any legal and political interaction. (5) Such positioning has been so since the beginnings of Canadian constitutionalism, centering Crown sovereignty as the immovable celestial force that Indigenous sovereignties (and by relation Indigenous law and governance) must gravitate around. (6)

The constructive weight of Crown sovereignty provided by common law courts is a fundamental challenge to a revitalization of Indigenous legal orders in Canada. (7) The use of Canadian jurisprudence as a path for law revitalization by Indigenous nations comes with the inherent threat that Indigenous sovereignties, and by extension Indigenous laws, will continue to be pulled and subsumed within this constitutional arrangement. (8) In this manner, the emergence of reconciliatory language within section 35 jurisprudence is a shape-shifter. It is a trickster that dances across courtroom tables and into judgements, offering the potentials of equality that come with the presumption of the pre-existence of Indigenous law and nationhood on one hand, but placing Indigenous sovereignties within the fatal orbit of the assertion of Crown sovereignty on the other. For this gravitational array, John Borrows says, "[r]econciliation has problematically dominated the jurisprudence dealing with Indigenous issues and is a flawed metaphor in this Held." (9)

Despite the disproportionate positioning of sovereignties enabled by section 35, Indigenous peoples continue to engage with Canadian-state law, as it is often the most immediate way for recognition of the autonomy and inherent governance of various Indigenous nations. Each interaction between Indigenous legal traditions and Canadian-state law is an opportunity for the courts to avoid shape-shifting reconciliation further away from its potential. While there have been a growing number of recent judgments that acknowledge the existence and applicability of various legal traditions from Indigenous nations, the transformative potential of Indigenous laws for the positioning of Crown and Indigenous sovereignties has not yet been realized. As this paper will examine, while Indigenous legal traditions are being raised and considered within Canadian-state law more now than at any other point in the history of Indigenous-Crown relations, there has been a comparative lack of substantive use of Indigenous legal traditions towards the resolution of common law problems.

Of course, political hands can do what judicial pens cannot. Renewed commitments to substantively implement the calls of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) offer a moment in time for governments to recalibrate the equilibrium of Indigenous-Crown sovereignty. If utilized in a significant and nuanced manner, UNDRIP provides Parliament and legislatures the opportunity to address these foundational weaknesses by providing direction for courts to reorient the utilization of Indigenous law in cases. It has emancipatory potential in its calls towards the "expression" and "exercise" of "Indigenous legal institutions". (10) It can have a decolonizing effect on all levels of government and ensure a "strong legal pluralism" in Canada. (11) It provides an opportunity to implement fulsome rights in line with the commitments within its articles and avoid the pitfalls of section 35(1) of the Constitution. (12) It provides strength to the consultation model within Canada regarding projects on Indigenous lands, ensures that decision making for these projects is ethical and humane, and in turn utilizes the potential for Indigenous laws to aid the cooperation and efficiency of these projects. (13) To fulfill the potential of the concept that "UNDRIP is an Indigenous instrument", the implementation of its commitments in Canada can only be fulfilled through a good faith understanding that Indigenous peoples will be the primary guides of its implementation. (14) Indigenous laws are foremost in this agency--any emancipatory potential of UNDRIP is tied to the robust jurisdiction and use of Indigenous legal orders.

More particularly, fulsome adoption of the commitments in UNDRIP would address the challenges involving the use of Indigenous legal orders within common law problems. As discussed further in this paper, recent decisions have been expansive in expressions for the inclusion of Indigenous laws in the work of trial judges. What is lacking is functional guidance, from either legislatures or higher courts, on how Indigenous legal orders can be substantively employed at trial. The dismissal of Wet'suwet en law in Coastal GasLink Pipeline Ltd v Huson (15) is emblematic of the lack of substantive direction that dangerously relegates the use of Indigenous laws to "window dressing" within the resolution of common law conflicts. The lack of substantive direction for the courts on the use of Indigenous laws is exacerbated by presumptions of knowledge of the judiciary within common law rules on evidence. The presumption that the judiciary holds the requisite knowledge on areas of domestic law, including Indigenous legal orders, is a major flaw and barrier to conciliation between legal orders. (16) Judges are considered to carry the expertise to adjudicate on all areas of domestic law, and therefore opinions about what the law is are generally refused, as the court is considered to not require the assistance of outside legal expertise. The Coastal GasLink case reveals the obvious reality: aside from exceptional instances, the Canadian judiciary is currently not in a position to receive and apply Indigenous laws and Indigenous legal processes in a robust manner without significant assistance from the Indigenous peoples and nations whose laws they are tasked with applying. In contentious situations like the construction of the Coastal GasLink pipeline--where Indigenous law and governance is raised to oppose Crown-supported industrial projects--the application of Indigenous law will be highly scrutinized. Without a comprehensive understanding of the legal system before it, the adversarial system provides too many avenues for the judiciary to avoid a proper application of Indigenous legal orders and the processes within them. (17) If a court lacks the competency, or the procedural space to obtain such competency, Indigenous nations will continue to be at a significant disadvantage.

This paper addresses this challenge in three parts. First, I will survey Canadian jurisprudence for attempts to incorporate Indigenous laws to highlight two trends: the use of Indigenous laws in an expressive way that often diminishes its use from laws to evidence of the "Indigenous perspective", and further, the uses that substantively apply Indigenous laws and legal principles for their intended purpose as law. Secondly, this brief survey will support an analysis of the judicial treatment of Wet'suwet'en law within Coastal GasLink, as significant barriers to substantively applying Indigenous laws in present-day common law problems bare their face in this decision. Finally, I will return to UNDRIP to see how its articles provide a duty for the judiciary to gain competency with Indigenous laws. As both the federal and BC governments have undertaken implementation of UNDRIP obligations respectively, the potential of these moves are significant in their guidance towards the use of Indigenous laws within the courts, and thus the conciliation of Indigenous legal orders with provincial and federal law.


    It is trite to say that Indigenous legal orders and traditions have always existed on Indigenous territories and that they have survived the assertion of Crown sovereignty. (18) While this paper is centered on the interaction between Indigenous legal orders and the common law, it is...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT