During her presentation, Me André-Grégoire will discuss her practice linking Indigenous legal traditions and Quebec civil law, including her involvement in the recent Supreme Court decision Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and Mani Utenam) which is an example of the sui generis nature of Aboriginal and treaty rights and of their difficult categorization within the framework of Quebec civil law. The Indigenous perspective is increasingly recognized by the courts as a concept that shapes Aboriginal law and that allows for a shift away from the sometimes strict concepts of civil law to understand the Indigenous perspective, but there is still a long way to go.
Starting from the premise that Indigenous laws are less about a prescribed set of rules than a « way of life », the paper aims to consider HOW Indigenous laws can be understood in context (including in-language, on-land and relationally). Further, the paper explores the proposition that laws are living and dynamic, grounded in multiple and re-enforcing sources of law: from the sacred, through the natural, the customary and then articulated into human made principles in response to particular circumstances.
Benoît Ethier, School of Indigenous Studies, UQAT et Sipi Flamand, School of Indigenous Studies, UQAT
Abstract and summary
In the necessary process of recognition and dialogue with state institutions, the Atikamekw Nehirowisiw nation must translate and its legal principles, concepts and knowledge and match them against state-enacted law. Conversely, when the members of the nation are consulted, another translation operation takes place to translate state-enacted legal principles and concepts into the Atikamekw Nehirowisiw system of thought. These are both perilous feats that take time and energy and mostly occur in one direction only, since the state institutions devote little time to recasting their terms and principles in a way that matches Indigenous languages and systems of thought. We hope to highlight the issues of translation and correspondence that arise and need to be dealt with in both directions.
Doris Farget, Faculty of Political Science and Law, UQAM; Nicolas Houde, Faculty of Political Science and Law, UQAM et Gabrielle Paul, Student, Political Science and Feminist Studies
Abstract and summary
Several Indigenous communities in Québec are considering the adoption of constitutions that reflect their legal practices and traditions and are accepted by their members. For this purpose, research has been undertaken at the historical, empirical (via interviews and group workshops) and linguistic levels to document the traditions concerned. In keeping with the approach of the Victoria School, this process must include an analysis of practices, experiences, stories and legends. The objective of this presentation is to discuss the advantages, contributions and challenges involved in applying the approach of the Victoria School, and more specifically of Val Napoleon and John Borrows, in projects to draft constitutions launched by Indigenous communities in the area today known as Québec.
The recognition of Indigenous law by the Canadian courts raises some major challenges, since the courts do not necessarily have the jurisdiction and legitimacy needed to rule on questions of Indigenous law. This presentation will discuss three types of interface that, to varying degrees, can be used to overcome these obstacles: (1) the direct application of Indigenous law by the courts, for example with respect to elections; (2) the integration of Indigenous values in a decision-making process based on a review of all the factors, for example for sentencing purposes; and (3) the judicial review of decisions made through Indigenous dispute resolution organizations or processes.
Jean Leclair, Faculty of Law, Université de Montréal
Abstract and summary
« Working against and alongside each other ». This aphorism aptly expresses the dynamic relationship that exists not only at the legal and constitutional level, but also at the social and political level, between the Indigenous and non-Indigenous legal orders in a context of legal pluralism. In light of the data provided by a vast study of legal pluralism conducted in Canada and elsewhere, I will look at the nature of the factors that structure the behaviour of players in a plurijural space. They include the influence of intersystemic relationships on behaviour, the players’ understanding of their own and other legal systems, and the spatial dissemination of authority among the legal systems present.
A deeply influential arc of Borrows’ scholarly work regards how indigenous law can interact productively with and within the Canadian common law tradition and Canadian constitutionalism more generally. Indeed, Canada’s Indigenous Constitution presents as a programmatic guide for encouraging and steering Canadian jurists towards this objective. One aspect of such a proposal—one which has generated significant excitement—turns on the adversarial nature of the common law’s judicial function and its methodology, the case method. In this talk, I endeavour to clarify the view of indigenous law from which incorporation into Canadian law via the notion of the legal case and the doctrine of precedent appears both possible and inclusive. Second, I disclose an alternative starting point which considerably complicates this result. Third, I turn to an aspect of Borrows’ argument which has received considerably less attention—engaging Canada’s legislative branch with enacting indigenous law. I suggest, especially in Quebec’s civil law context, a version of this possibility which holds real promise for introducing indigenous law to Canadian jurists in a way that they can understand and apply.
Geneviève Motard, Faculty of Law, Université Laval
Abstract and summary
This presentation offers some thoughts about the law of property and land resources in Québec and its relationship with Indigenous legal traditions, including Innu law. Although some fundamental principles of the two legal traditions clearly conflict, others appear to be reconcilable. The fact remains, however, that Québec currently provides little scope for Indigenous legal tradition. In the south of the province, the affirmation of private and public property with no thought to any form of Indigenous ownership, the principle of free access, and limited or ad hoc processes for involving Indigenous players in government decisions, are some of the main problems. Several possibilities for reform can be considered, but this paper explores two approaches that have received little attention in the doctrine: the affirmation of Indigenous land occupation, and adjustments to Québec’s civil law on ownership.
Joshua Nichols, Faculty of Law, University of Alberta
Abstract and summary
It has become clear that in the thirty years since Sparrow the Court’s doctrine of Aboriginal rights has been exhausted in important respects. With Indigenous peoples increasingly framing their constitutional demands in the language of self-determination, the limitations of s. 35 doctrine are beginning to show; it is increasingly difficult to find productive solutions as the colonial underpinnings of the doctrine prune its more generative outgrowths. This paper argues that the similarities underpinning Sparrow and the Secession Reference, coupled with the vastly dissimilar approaches taken by the Court in each, provide us with a perspicuous view of the unstated presumptions that reside in the background of the Court’s interpretation of our constitutional order. With these presumptions in view, it is possible to put forward a principled reconsideration the Court’s reasons for developing two frameworks for reconciliation, thereby clearing the ground for a principled reimagining of our diverse constitutional order through the vocabulary of federalism.
Ghislain Otis, Faculty of Law, University of Ottawa
Abstract and summary
This paper attempts to place the approach followed in the research of the so-called Victoria School within the broader framework of the theory of sources and the modes of production of the law. It will address the question of deciding which law in fact makes it possible to define a method for extracting normative material from the ethnographic corpus of stories drawn from the oral tradition of Indigenous peoples. We will examine the relationship between this approach and the observation of the normative practices effectively applied in the social field within the communities concerned. Last, we will identify ways to mobilize the knowledge generated by the Victoria School in order to revitalize or revalue Indigenous legal cultures in the governance of the future.
Since June 16, 2018, Indigenous custom has been officially recognized in Québec in the field of adoption and suppletive tutorship. With the goal of supporting the work of the competent authority, an empirical and ethnographic approach has been applied among the Atikamekw Nehirowisiwok of Manawan. Taking legal pluralism into consideration, which posits the existence of legal traditions in every society, the custom-based system will be presented using the explanatory schema defined by researchers as part of the Légitimus project with the Canada Research Chair in Legal Diversity and Indigenous Peoples, directed by Professor Ghislain Otis. The schema identifies five fundamental elements common to all legal systems: values, principles, rules, actors and processes. The Nehirowisiw (relational) epistemological approach leads us to fundamental level via Notcimik, the forest universe, which constitutes the social universe.
Justice Lorne Sossin, Ontario Superior Court of Justice
Abstract and summary
Should Indigenous governance be subject to similar administrative law principles as other public settings in Canada? Can tribunals established under the delegated authority of First Nations or the inherent rights to Indigenous self-government apply Indigenous legal principles (and does it matter whether those subject to such decisions are Indigenous or not?). Can other tribunals established under federal, provincial or territorial statutes apply Indigenous law, and if so, under what authority, according to whose interpretation and with what oversight? Taking John Borrow’s work on « multi-juridicalism » as a point of departure, this study will examine these questions in ways that seek to do justice to the principles of Canadian public law and principles of Indigenous law. As Borrows put it in The Indigenous Constitution, « the operation of multiple legal systems is a Canadian tradition. »
Nadine Vollant, Director of Social Services, Uauitshitun health centre, health and social services board for the Innu community of Uashat mak Mani-Utenam
Abstract and summary
The recognition of Indigenous custom law in the Civil Code of Québec, and the recognition of the jurisdiction of Indigenous organizations in youth protection cases by the federal parliament, clearly opens the way for consideration for Indigenous legal traditions by the Québec courts and, more specifically, by the specialized organizations and tribunals responsible for protecting child and youth rights. It also opens the way for the creation of Indigenous courts, following the example of the United States. Based on an approach developed in the field of social work and from an Innu perspective, this presentation will describe current initiatives and relate them to the principle of self-determination at the heart of the Declaration on the Rights of Indigenous Peoples.
Christine Zuni-Cruz, School of Law, University of New Mexico
Abstract and summary
Indigenous legal tradition has existed since time immemorial. Without deliberate methods to understand indigenous legal tradition, other legal traditions overshadow indigenous legal tradition and its unique texts, altogether. This paper considers Professor Borrows’ observations regarding the role of courts in the recognition and implementation of Indigenous legal traditions and the courts’ record, generally, in not measuring up to the task. Agreeing with Borrows, and in critique of courts, the paper highlights the seriousness and urgency of this task through an examination of the relationship between legal traditions and what is required of courts. I come at this consideration of nation state courts based on years of consideration of American tribal court systems, operating within the American common law legal tradition. As part of the analysis, I consider what courts have done and what is at stake for Indigenous Peoples, if the effort to respect Indigenous legal tradition is not undertaken.
