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Reconciling ourselves to Indigenous law

We need to think more about how Indigenous law was originally imagined and how it must be implemented today.

Bridge of balance
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William Connolly was an apprentice clerk in the North West Company as the 19th century was dawning, embarking on a career in the fur trade that would let him die a wealthy man 62 years later. At age 17 he met and married a M├ętis Cree girl named Miyo Nipiy, stepdaughter of an influential chief. They had six children together.

In 1832, having clawed his way up the NWC corporate ladder, he moved to Montreal, disavowed his first marriage and married his second cousin in a Catholic church. After his death, his son by the first marriage sued for his inheritance — and won.

William Connolly’s chequered domestic history matters to us now for just one reason: it proves that in Canada, long after colonization was well advanced, Indigenous law and customs (marriage customs, for example) were alive enough to be seen by the courts as a valid body of common law.

It’s an important point to remember as the reconciliation project moves forward. Despite the legacy of the Indian Act, which worked to crush Indigenous legal orders to make room for Crown law, those legal orders never died, never went away completely. And now, they’re starting to come back.

One of the biggest challenges facing treaty federalism and the reconciliation project is that of integrating Indigenous legal orders in a way that respects both their original content and the “principle of continuity” that made Mr. Connolly’s first marriage valid under British law. It’s the principle Beverley McLachlin once called the “golden thread” running through the legal relationship between First Nations and the Crown.

On June 20 in Banff, the Canadian Bar Association’s conference on Aboriginal law will host a panel discussion on navigating the junction between Crown law and Indigenous legal orders. As Ottawa moves to ‘decolonize’ its laws and as Indigenous communities rediscover and adopt old legal orders, courts and legislators are going to be expected to manage the emergence of a new sphere of law — and avoid conflicts in the process.

“You’re seeing more pressure to recognize Aboriginal law as occupying a special status, like that of Quebec,” says Joshua Nichols, an assistant professor of law at the University of Alberta and a participant in the upcoming panel. His work focuses in part on how the courts’ interpretation of Indigenous rights in the Constitution has failed to recognize Indigenous laws — the laws that made William Connolly’s first-born son his rightful heir.

“In the popular imagination, law comes from legislation alone. But common law comes out of judicial decisions, and the law itself grows initially out of customs, patterns of behaviour and belief.”

Many urban Canadians might be surprised to learn just how often centuries-old Indigenous legal systems are applied in daily life. “They’re being practised all the time,” says Alan Hanna, an associate counsel at Woodward and Company in Victoria. Originally from Kwikwetlem traditional territory in B.C., his background in anthropology has made him one of the ranking experts on the intersection of Indigenous legal orders and Crown law.

“Take hunting, for example, where Indigenous traditions decide which animals can be hunted when and how the game should be shared out to members of the community. And those traditions don’t always agree with the wildlife acts in force locally.”

Still, it’s in the local sphere that Indigenous legal orders seem to have found the most leeway for expression to date. In his seminal paper on Indigenous law, Spaces for Sharing, Hanna breaks down the areas where the Crown recognizes Indigenous law into four silos: delegated authority, constitutional authority, Aboriginal title, and self-government.

The law-making power the Crown delegates to Indigenous communities works through the Indian Act, the First Nations Land Management Act, and shared decision-making agreements. The power allotted to First Nations under the Indian Act’s bylaw section is a mile wide and an inch deep — mostly local control over quality-of-life matters such as water services and wildlife management. While the bylaw section of the Act is written in language loose enough to “drive a truck through,” says Nichols, it also restricts the community’s power to set laws to mainly municipal concerns and keeps the available penalties low.

“The bylaw power puts a limit on the amount of responsibility Indigenous communities can take on,” says Hanna. “If you can’t impose a penalty beyond a $1,000 fine, there’s not much you can do.”

Still, the bylaw power isn’t useless. In 2014, Ottawa repealed its “disallowance power,” which let it quash any Indigenous laws it saw as straying outside Indian Act authority. The Spallumcheen First Nation in B.C. has been running its own child welfare system since 1981, using the bylaw power as authority.

The First Nations Land Management Act lets First Nations get out from under the Indian Act’s land management rules and establish land codes of their own — codes which can be informed by Indigenous law. Shared decision-making agreements between First Nations and provincial or federal governments allow Indigenous communities to extend their authority to traditional territories off-reserve. But with the exception of the Kunst’aa guu-Kunst’aayah agreement between the Haida Nation and B.C., says Hanna, such shared decision-making agreements tend not to be co-equal. “The Haida example,” he writes in Sharing Spaces, “is a one-off.”

Section 35 of the Constitution Act, Hanna says, “implicitly” recognizes the validity of Indigenous law off-reserve “through personal jurisdiction over its members.” That law tends to express itself in the practice of Indigenous hunting and fishing rights — rights that effectively function under Indigenous laws.

Aboriginal title “offers a path for the expression of Indigenous laws,” Hanna writes — except where the abolishment of interjurisdictional immunity allows provincial or federal law to override Indigenous law, leaving “almost no jurisdictional space on title lands.” Modern treaties and self-government agreements offer First Nations “explicit delegated jurisdiction over harvesting, the management of (treaty settlement lands) and cultural practices,” Hanna writes. “Where there is a conflict of laws, the treaty First Nation’s laws prevail to the extent of their jurisdiction under the agreement …”

So even under the patchwork of arrangements Indigenous communities have with the Crown now, there is room for the expression of Indigenous law. Sentencing circles are a familiar enough aspect of modern Canadian courts. In 2015, the First Nations Court in B.C. went a lot further, deploying Salish law and process to settle a case of two hunters caught violating the provincial Wildlife Act by killing game in Ditidaht territory on Vancouver Island.

The men had pleaded guilty prior to their date with the First Nations Court; the court’s authority was limited to sentencing. The hunters apologized to the community and were tasked with helping out with maintenance at the community Long House for a year. No lawyers were involved.

The outcome of that case displays a trait of Indigenous legal tradition: an emphasis on community harmony, on talking things out, over punishment and judgment.

“In the Plains Cree legal tradition, we talk about our collective responsibility to respond to harms. When a crime occurs it’s not just between the offender and the victim, it’s also connected to the larger community,” says Darcy Lindberg, an assistant professor at the University of Alberta law school specializing in Plains Cree legal orders.

“In the Canadian justice system, a person is charged, hires a lawyer and goes to trial. He can fold his arms and say nothing at all, right through to sentencing. In sentencing circles, the offender has to account for their actions in front of the community, the family members, those affected.”

You can see that approach to justice at work in Akwesasne, a massive Mohawk territory straddling the borders of Quebec, Ontario and the State of New York. There the band council has set up a court of its own to enforce over 30 laws dealing mostly with local matters (property crime, sanitation, wildlife conservation). Criminal law enforcement is left to outside provincial or federal courts. Unlike local laws enforced at the band level elsewhere, Akwesasne’s court enforces laws authorized locally and not through the Indian Act’s bylaw power.

The Akwesasne court tends to take an anti-punitive approach to sentencing. There are no jail terms. Offenders might find themselves sentenced to various forms of community service, deploying their talents and skills — anything from carpentry to amateur sport — to help their neighbours.

Such court models are certain to spread throughout Canada as Indigenous communities move to take more control over how their people live, and as the academic work of researching Indigenous legal orders goes forth in universities. Hanna says Indigenous courts are likely to limit their scope to the local.

“A small First Nation community is going to struggle to deal with (murders or sexual offences) when the victim and the offender may live near one another, when their families have known each other forever,” he says.

“First Nations understand they’re in a relationship with the rest of the country, with the Crown. This is about making that relationship more healthy. Complete authority might be the idealized vision for some, but not for most.”

In the meantime, he says, lawyers need to do more to educate themselves about Indigenous law and history — the “appropriate cultural competency training” called for by the Truth and Reconciliation Commission and embraced by the Canadian Bar Association — to make sure Indigenous laws are drafted, interpreted and enforced in ways that respect their original meaning.

“Indigenous legal orders often get interpreted by lawyers drafting them in a Western style, so that the law that they wind up with is written with the Indigenous legal concepts in the preamble and the rest of the draft looking like municipal law,” he says. “So there’s a lot of learning the legal community itself needs to do, in order to find contemporary forms that still reflect those older legal traditions.”

It’s even possible that Crown law could learn something from the Indigenous approach to justice — from the idea that a prison term can’t solve every problem.

“One of the most interesting things about Canadian history is what didn’t happen,” says Nichols. “Given the Indigenous experience post-contact, armed guerrilla resistance would be the most understandable thing in the world.

“And yet, with a few minor exceptions, it hasn’t happened. I see that as a tribute to the nature of Indigenous legal traditions, which tend to lean toward discursive approaches instead of force.”