A close look at aboriginal law

Ghislain Otis

“Western societies must view legal 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 aboriginal 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 fraught with complications related to provincial healthcare coverage and social welfare services because these adoptions aren’t recognized under the province’s Civil Code.

This is one of many examples of issues that affect aboriginal communities around the world and that are at the core of claims, protests and demonstrations such 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 aboriginal peoples. “We must acknowledge their traditions because they make up part of humanity’s great heritage,” he says.

Otis was recently 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 will allow him to lead an international research project on the co-existence of state and aboriginal legal systems.

The project will bring together 14 universities from seven countries and partners from aboriginal communities around the world. Researchers will study the interaction between aboriginal 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 coexist.

The comparative study, which “brings the University of Ottawa’s aboriginal research to the world stage,” says Otis, will allow researchers to identify the most effective governance structures. “Our Inuit and Innu partners will document their customary adoption practices to then determine the best way to adapt their system so it is in line with Quebec’s Youth Protection Act,” he adds.

In Canada, conflict and confrontations arise sometimes between the State and First Nations when the government violates First Nations’ aboriginal rights by giving cutting rights to forestry companies. “Nobody wins in this situation. The cutting rights aren’t worth anything to the companies anymore and aboriginal peoples no longer have access to the resources.”

The traditional rights of First Nations people aren’t recognized to a great extent in Canada. However, we are starting to see an openness towards adoption customs in British Columbia and in the territories. In addition, when new treaties are negotiated, the agreements recognize some aboriginal legal cultures, mainly those involving the Labrador Inuit. But Otis underscores that they’re still the exception to the rule.

“Western societies must view legal 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 literally ignored by the colonizers.”

Recognizing aboriginal legal cultures should make it possible to harmonize the two legal systems, which is exactly what is meant by legal pluralism.

“Since the days of colonization, the aboriginal legal system has been influenced by the Western system. These two systems do share some basic values, though—the values of respect and individual freedom. 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 agreedupon standards.” 


by Johanne Adam

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