Legal Pluralism and the Evolution of Laws in B.C.

by Megan Vis-Dunbar

December 2023

B.C.’s Crown laws have begun to evolve in response to B.C.’s 2019 Declaration on the Rights of Indigenous Peoples Act (Declaration Act).1 This reform of B.C. laws is required to bring them into alignment with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), a comprehensive articulation of Indigenous Peoples’ inherent individual and collective rights.

UNDRIP recognizes the rights that “constitute the minimum standards for the survival, dignity
and well-being of the indigenous peoples of the world,”2 and the Declaration Act affirms the application of those principles to B.C. law.

Law reform supporting implementation of UNDRIP can be approached in several ways. One key path, and the path highlighted in the Declaration Act Action Plan, is grounded in legal pluralism.3 BCLI’s Reconciling Crown Legal Frameworks Program aims to support the recognition of Indigenous jurisdiction alongside Crown laws. A legal pluralist approach is a powerful means to conceive of this new legal landscape and one that that will build respectful relationships between distinct systems of law.

Legal pluralism exists where multiple systems of law operate alongside and in dialogue with one another. It describes the existence of two or more legal systems in the same social or geographic space. This framework has always existed in Canada’s Crown legal system and can help us to understand how the relationships between these systems exist and evolve.

B.C.’s Action Plan points to the legal pluralist arrangements in cooperative federalism as reflecting the model for working relationships between Indigenous governments and the province.4 Cooperative federalism within Canada’s constitutional framework accommodates overlapping jurisdictions in a flexible way, encouraging intergovernmental cooperation within a dynamic relationship over a strict adherence to exclusive spheres of power. This dynamic relationship means that it does not override the jurisdiction of either level of government.5

Cooperative federalism is an intentional approach to the coordination of powers between Crown governments, and is a judicial approach to legislative interpretation that seeks harmonization of overlapping jurisdictions, not conflict.6 It provides a framework within which intergovernmental relationships interact and evolve. It is an effective model for conceiving new ways of integrating Indigenous legal perspectives into Crown laws. While Indigenous law and governance may be new concepts for Crown lawyers, the recognition of multiple legal orders in our law has always existed. BCLI is committed to recognizing Indigenous jurisdiction in line with UNDRIP and supporting the corresponding evolution of Crown legal frameworks.

  1. SBC 2019, c 44. |
  2. UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, Article 43. |
  3. British Columbia, Ministry of Indigenous Relations and Reconciliation, Declaration on the Rights of Indigenous Peoples Act Action Plan, 2022-2027 at 6 [Action Plan]. |
  4. Action Plan, supra note 3 at 10. |
  5. Reference re Impact Assessment Act, 2023 SCC 23 at para. 122. See also Reference re Securities Act, 2011 SCC at para. 57. |
  6. See Scott A. Carrière, “The Emergence of a Normative Principle of Co-operative Federalism and its Application” (2021) 58:4 Alta L Rev 897 at 900. |