Indigenous and Settler Legal Systems

Theme Co-Leads

Dr. Janna Promislow, University of Victoria

Overview

There is a deep asymmetry between Indigenous and state laws in Canada that modern treaties have not remedied. This asymmetry does not allow for treaties to fulfil their promise of renewing or implementing an equality between nations, nor does it permit the vision of Canada as a legally pluralistic state to be properly achieved.

The objective of this research theme is to foster research that improves this state of affairs by helping to dislodge the domination of state law over treaty jurisdictions and Indigenous legal systems. Such research will be responsive to the aims of modern treaty communities with respect to the articulation of and reliance upon Indigenous law within their nations and in their relationships with the state. It will also be responsive to the need to examine state laws and points of intersection to identify the space and approaches that might allow for non-hierarchical relationships and multi-directional influences between legal systems.

To begin our work, we have defined three areas of inquiry:

1. Indigenous law in modern treaty contexts

While there are many projects across the country aimed at developing frameworks and substantive articulations of Indigenous laws, to our knowledge this work has not yet been tackled in relation to modern treaty and self-government frameworks.

2. Land Claims Agreements Coalition priorities

We will work with LCAC members to gather baseline information about LCAC member laws and the current state of law-making by legislative and judicial bodies constituted through land claim agreements, and toidentify Indigenous law research priorities.

3. Persistent and significant questions of state law

In general, Land Claims Agreements are not an easy fit within state public law. We will pursue research on novel questions of state law that modern treaty implementation raises, particularly those identified to us as priorities by LCAC members.

Objectives

To foster research that addresses the asymmetry between Indigenous and state laws in Canada; and asymmetry which does not allow for treaties to fulfil their promise of renewing or implementing an equality between nations, nor permit the vision of Canada as a legally pluralistic state to be properly achieved.
To help dislodge the domination of state law over treaty jurisdictions and Indigenous legal systems. Research will be responsive to the aims of modern treaty communities with respect to the articulation of and reliance upon Indigenous law within their nations and in their relationships with the state.
To foster research that will also be responsive to the need to examine state laws and points of intersection to identify the space and approaches that might allow for non-hierarchical relationships and multi-directional influences between legal systems.

Initial theme research questions

Indigenous law in modern treaty contexts

What are the forms and content of Indigenous law in the context of modern treaties? Is a hybrid of state and Indigenous law inevitable?
How does jurisdiction confirmed through treaty relate to the exercise and articulation of Indigenous law?
Should Indigenous law be pursued and implemented through institutions established by Land Claim Agreements? To what extent are such approaches already in place?

Land Claims Agreements Coalition priorities

How do LCAC members understand the need for Indigenous law research?
How do LCAC members understand Indigenous law?
What do LCAC members expect the articulation and implementation of Indigenous law approaches to achieve?

Persistent and significant questions of state law

What are critical questions of state law that LCAC members encounter in implementing their agreements?
For example, what does a treaty commitment to “comparable services” mean? How does this language relate to and draw upon s. 36 of the Constitution Act, 1982? The meaning of “comparability” is of critical interest to many LCAC members in relation to fiscal financing negotiations and associated state policy.