Encompassing Indigenous Law

Are we living in an emerging era of Indigenous renaissance in Canadian law?


Encompassing Indigenous Law

The National Indigenous Law Centre (the “NILC”) represents the future; an emerging era of renaissance in Canadian law that encompasses both an intellectual landscape and a practical landscape for Indigenous law. This article examines how Indigenous law was recognized in the past and canvasses one new institution, at the University of Victoria, anticipated to play a vital role in how Indigenous law may be conducted within the current Era of Truth and Reconciliation. Expressions of Indigenous law within the contemporary space at NILC will demonstrate the renaissance of past and present forms of law to aid and transform the future practice of Indigenous lawyers, communities, and families within the landscape of a Canadian public consciousness toward Indigenous peoples.

The Indian Act was the main legislation that governed the relationship between Indigenous peoples and Canada until recently. The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and the Truth and Reconciliation Calls to Action are contributing to a rebirth in how Indigenous law is practised. A recent interview with Dr. Val Napolean highlights just how this kind of renaissance is taking root. Particularly, at the University of Victoria’s Indigenous Law Research Unit (“ILRU”) where it is expected the NILC will be built in 2020.

Dr. Napoleon is the Law Foundation Chair of Aboriginal Justice and Governance, and Director of the ILRU and the JID-JD, Faculty of Law, University of Victoria. Dr. Napoleon’s work focuses on Indigenous legal traditions, legal theories, feminisms, citizenship, self-determination, human rights, and governance.

Dr. Napoleon shared her enthusiasm and excitement about the plans underway for building the NILC in 2020. Dr. Napolean posits that there are differences between Indigenous law and Canadian law and asserts that there is a need to take a serious look at how the intellectual and practical landscapes of Indigenous law are changing. In Indigenous Legal Traditions: Roots to Renaissance, Dr. Napolean and Freidland state that: “the renaissance or resurgence of Indigenous law, claimed, recognized, and engaged with seriously as law.” This is important because it captures what the renaissance is about: engaging seriously with Indigenous legal orders and traditions.

In a recent interview, Dr. Napoleon elucidates the key differences between Indigenous law and Canadian law that may contribute to the future of law in an era of renaissance. Canadian law is state law and Indigenous law is decentralized. Decentralized law refers to how Indigenous legal orders are rooted in kinship, oral histories and processes that are tied to the land. The law in this sense is not centralized in that Indigenous law will vary across kinships, geography and specific Indigenous groups. Dr. Napoleon adds that if you look at the history of Canadian law as common law in the fifteenth and seventeenth century that common law was also decentralized. Dr. Napolean further explains that “law is a collaborative intellectual process that enables people to make decisions that they recognize are legitimate.

At an intellectual level the ILRU and the NILC will create a space for much needed dialogue about what Indigenous law is and how it operates in contemporary circumstances. Dr. Naploean also affirms that there are “long-term intellectual shifts taking place in Indigenous law that will impact how law is developed in the future. Dr. Napolean and Friedland maintain that: “the future of law is going to be to harness the long-term intellectual shifts in law.” Dr. Napoleon views this development of the NILC as an opportunity to rebuild Indigenous law by rebuilding governance and rebuilding citizenry. It creates a space for translating/transmitting oral histories and stories into resources for systematically and critically analyzing oral histories for contemporary solutions to problems.

The ILRU that will be housed in the NILC was the only Indigenous law research unit in Canada until recently with the addition of a sibling research unit at the University of Alberta. The ILRU hopes to branch out across Canada and internationally
to Sydney, Australia. The ILRU works in partnership with the community through invitation only and offers a three-day workshop to teach methodology. Dr. Napolean shares that the centre offers a one-month intensive course every year on International dialogue about Indigenous law.

Another initiative of Dr. Napolean’s taking place at the ILRU has been a water project. The water project allows for legal work to be applied to the hard problems in Indigenous communities.

The water project works with three specific regions that face water scarcity. According to Dr. Napolean, the unit has researched words from the Indigenous laws in each of the regions. An associate of the ILRU is assisting the research unit to examine both the relevant state law and Indigenous law. The goal is to find out whether state law and Indigenous law can be reconciled for more equitable management of the water resource. Incorporating both the state and Indigenous law as guidelines for resource management.

Dr. Napolean affirms that the NILC should be an inviting space for all people and should generate excitement about sharing across our different legal perspectives and across our legal orders. She states: “People who are from around the world are hungry for a different way of thinking about Indigenous law. Across Canada, people have been talking about fairness, inclusion, equality, dignity, individual autonomy and collective responsibility.” The water project is an example of how the research unit and the NILC will contribute to the Indigenous renaissance and resurgence.

In Indigenous Legal Traditions: Roots to Renaissance, Dr. Napolean and Freidland state that “The renaissance of Indigenous legal traditions is not about a specific concrete outcome, but rather about rebuilding the intellectual resources and the political space to have more symmetrical, reciprocal and respectful conversations within and between Indigenous and state legal traditions.” Although the water project is a concrete example, the more important outcome of this project is that it is a collaborative intellectual process that is facilitating a recognition of Indigenous laws as a means to arrive at legitimate decisions about increasingly scarce resources.

Dr. Napolean and Friedland state that North American law schools are moving toward developing and offering substantive curriculum on Indigenous legal traditions. At the University of British Columbia’s Allard School of Law, the Indigenous Legal Studies Program offers a range of courses that focus on Indigenous legal traditions. Dr. Napolean relates that at the University of Victoria an “innovative and ambitious academic initiative is in the works.” Particularly, “a joint common law and Indigenous law degree program a juris Indigenarum Doctor and Juris Doctor” is available to law students and scholars interested in studying in this area. This degree program would be the first of its kind in the world.” This is important because it embodies a movement on the intellectual landscape within law schools and the academic communities toward realizing the necessary incorporation of the practical and intellectual landscapes that comprise an Indigenous renaissance.

The NILC has the potential to embody a significant marker in an Indigenous law resurgence and renaissance. It is a reminder that one of the distinguishing features in building the NILC is that the physical space and intellectual spaces should reflect a process of making room for the passing on of knowledge consistent with Indigenous law.

A key question remaining now may involve asking where does this renaissance in Indigenous law lead to next in the development of more equitable laws and policies for applying Indigenous laws nationally and internationally toward equality in Indigenous communities?