One of the arguments at the heart of Canada’s Indigenous Constitution is that the Canadian state and courts should recognize the possibility and necessity of including Indigenous legal traditions as genuine sources of law in Canada. How, though, can we specifically address the relationship between Indigenous legal traditions and the Canadian legal system, while avoiding ongoing colonialism? In the new preface written for the French translation of his book, Borrows characterizes the relationship between Indigenous legal traditions and common and civil law as “working against and alongside each other”. The participants in the panel discussion are asked to reflect on the meaning and possible implications of this characterization, for example by looking at the factors that structure the players’ behaviour, reviewing the promises and pitfalls of a concurrent legal model in a specific field, and discussing the myth of Crown sovereignty and its connection with the effacing of Indigenous legal orders.

Chair: Michael Coyle, Faculty of Law, Western University

Parameters for action in a context of legal pluralism
Jean Leclair, Faculté de droit, Université de Montréal

Reconciliation and the Straitjacket: A Comparative Analysis of the Secession Reference and R v Sparrow 
Joshua Nichols, Faculty of Law, University of Alberta

John Borrows, working with Professor Val Napoleon, has played a key role in developing ways to understand, learn about and revitalize Indigenous legal traditions, which rely on a relationship with the land and related traditional knowledge. This methodology, now associated with what is known as the “Victoria School”, has been adopted by numerous Indigenous communities and researchers, while also remaining a topic of debate. The participants in this panel discussion are invited to take stock of the methodology, question its relevance in the Québec context, and outline what they consider to be promising approaches for the revitalization of Indigenous legal traditions in Québec and Canada. They should view the approach within the broader framework of the theory of sources and the modes of production of the law, consider ways to mobilize knowledge for governance purposes, highlight the importance of understanding Indigenous laws in context, study some of the conceptual challenges raised by common law and civil law with respect to Indigenous legal traditions, and examine the contributions and challenges raised by the work of the Victoria School in connection with the plans to draft constitutions for certain Indigenous nations in Québec.

Chair: Kirsten Anker, Faculty of Law, McGill University

The quest for an Indigenous legal order: the Victoria School, between learned law and living law
Ghislain Otis, Faculté de droit, Université d’Ottawa

Understanding is living: pathways to Indigenous laws
Aimée Craft, Faculty of Law, University of Ottawa

How can Indigenous law interact productively with and within the Canadian common law tradition? A reconsideration of Canada’s Indigenous Constitution
Aaron Mills, Faculty of Law, McGill University

Indigenous constitutionalism(s) in Québec: the current situation and possible lines of approach
Doris Farget, Département des sciences juridiques, UQAM; Gabrielle Paul et Nicolas Houde, Département des sciences juridiques, UQAM

In various works, and in particular in Canada’s Indigenous Constitution, Borrows has drawn on his in-depth knowledge of Indigenous law and common law to highlight possible gateways between the two legal traditions, but has only sketched in the potential for dialogue between Indigenous law and civil law. The objective of this panel discussion is to reflect on the inherent challenges raised by the coexistence of Indigenous and civil law, and the potential for applying Borrows’ work in this context. The themes of ownership, land, and responsibility for the Earth’s resources and family relationships, as well as the difficulties generated by translation, will all be addressed.

Chair: André Bélanger, Faculty of Law, University of Ottawa

Some thoughts about the relationship between Québec property law and Indigenous legal traditions
Geneviève Motard, Faculté de droit, Université Laval

Awactenamakanicic e opikihakaniwitc, A custom-based system leading to greater child autonomy
Eva Ottawa Waseskinokwe, Faculté de droit, Université d’Ottawa

The Atikamekw Nehirowisiw self-determination process and several issues connected with the translation and correspondence of Indigenous legal knowledge and state-enacted law
Benoît Ethier et Sipi Flamand, École d’études autochtones, UQAT

The case Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of ManiUtenam)
Marie-Claude André-Grégoire, O’Reilly et associés

Indigenous legal traditions effectively, while emphasizing the many different reasons supporting the position that they are not equipped for this mission. The participants in the panel discussion will be asked to reflect on the way in which the courts, since Canada’s Indigenous Constitution  was first published in 2010, have favoured or hindered the recognition of Indigenous legal traditions, and also to sketch out some possibilities for the future. More specifically, they will discuss the serious and urgent need to recognize and implement Indigenous legal traditions; examine the types of interface that could help overcome the obstacles to the recognition of Indigenous law by Canadian courts; and consider the application of Indigenous law in the context of multi-juridicalism, especially in the field of administrative justice.

Chair: Me Paul John Murdoch, Murdoch Archambault

Three interfaces between Indigenous law and the Canadian courts
Sébastien Grammond, Cour fédérale

Indigenous Peoples and Administrative Justice
Lorne Sossin, Ontario Superior Court of Justice

Shadows and Texts: The Indigenous Legal Tradition and Courts
Christine Zuni-Cruz, School of Law, University of New Mexico

Indigenous children’s rights, youth protection and the courts: the outlook for the future
Nadine Vollant, Directrice des services sociaux d’Uauitshitun, CSSS de la communauté innue d’Uashat mak Mani-Utenam