A close look at Indigenous legal tradition

Ghislain Otis calls for the concerted recognition of Indigenous legal systems around the world.

Ghislain Otis

“Western societies must view Indigenous cultures as legitimate. Colonization obscured not only the religions and languages of Aboriginal peoples but also — and even more so — their legal cultures.”

– Ghislain Otis

For some Indigenous peoples, the adoption of a child is usually carried out in keeping with the legal culture of the community — something that often carries with it serious consequences for the families involved. In Quebec, for example, customary adoptions are potentially fraught with complications because these adoptions aren’t recognized under the province’s Civil Code.

This is one of many examples of issues that affect Indigenous communities around the world and that are at the core of claims, protests and demonstrations such as the Idle No More movement that took Canada by storm in the winter of 2012.

Ghislain Otis, a professor with the University of Ottawa’s Civil Law Section at the Faculty of Law, believes improvements must be made to current systems in order to restore dignity to Indigenous peoples. “We must acknowledge their traditions because they make up part of humanity’s great heritage,” says the Canada Research Chair in Legal Diversity and Aboriginal Peoples.

In 2013, Otis was awarded a partnership grant of more than $2 million from Canada’s Social Sciences and Humanities Research Council, the University of Ottawa and the French Ministry of Foreign Affairs. This funding allows him to lead an international research project on the coexistence of state and Indigenous legal systems.

The project brings together 14 universities from seven countries and partners from Indigenous communities around the world. Researchers are studying the interaction between Indigenous and state legal cultures in Canada, some African nations and island states in the South Pacific.

Otis says these countries represent highly interesting labs for Canadian researchers. South Africa, for instance, recognizes African customary law in its post-apartheid constitution. The French territory of New Caledonia allows the legal systems of both the state and the Kanak Aboriginal people to exist together.

The comparative study, which “brings the University of Ottawa’s Aboriginal research to the world stage,” says Otis, allows researchers to identify the most effective governance structures. “For example, our Inuit and Innu partners are documenting their customary adoption practices in order to determine the best way to adapt their system to coexist harmoniously with Quebec’s Civil Code and Youth Protection Act,” he adds.

In Canada, conflict and confrontations often arise between the State and First Nations when harvesting rights are given to companies on lands deemed to be ancestral by Indigenous communities. “Nobody wins in this situation. The rights aren’t legally guaranteed for the companies and Aboriginal access to the land is compromised.”

The legal traditions of Indigenous peoples aren’t recognized to a great extent in Canada. However, we are starting to see an openness towards customary adoption in British Columbia and in the territories. In addition, when new treaties are negotiated, the agreements recognize some aspects of Indigenous legal cultures, as is the case, for example, of Labrador Inuit customary law. But Otis underscores that they’re still the exception to the rule.

“Western societies must view Indigenous cultures as legitimate, says Otis. “Colonization obscured not only the religions and languages of Aboriginal peoples but also — and even more so — their legal cultures. The legal systems these people had in place were more often than not literally ignored by the colonizers.”

Recognizing Indigenous legal cultures should make it possible to harmonize the two legal systems, which is exactly what is meant by what Otis calls “cooperative legal pluralism.”

“Since the days of colonization, Indigenous legal systems have been influenced by Western law. These two systems do share some basic values, though — the values of respect and individual freedom, for example. So it isn’t unfathomable to think we can bring the two systems closer together. But the first step is simply for the groups to enter into a dialogue where differences are respected and adopt agreed-upon standards.”

 

This article was first published in Tabaret, September 2013.

by Johanne Adam

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