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Indigenous Customary Law in Canada

Updated: Feb 9

Tansi Nîtôtemtik,

This month on the blog, we are discussing the operation and revitalization of Indigenous laws. We will explore this topic from many angles and will discuss topics including Indigenous laws themselves, the sources of these laws, Canada’s treatment and reception of Indigenous law, Indigenous law revitalization projects, and the ways in which Indigenous nations can exercise their inherent right to live their lives according to their laws.

To begin this conversation, I will introduce the topic of Indigenous customary law. Indigenous customary law is but one source of Indigenous law. Other sources have been said to include sacred teachings, naturalistic observations, positivistic proclamations and deliberative practices.[1] Indigenous legal traditions often involve the interaction of these multiple sources at once,[2] reflecting the diversity, complexity, and sophistication of these legal systems.[3]

Art Credit: “Transformation” By Aaron Paquette

Indigenous customary law has been defined as “that body of customs, norms and associated practices, which have been developed or adopted by Indigenous peoples and local communities, whether maintained in an oral or written format, to regulate their activities and which they consider to be binding upon them without the need for reference to national or other temporal authorities.”[4] Put very simply, customary law refers to laws that have been established over time through practice, and are not necessarily written down or otherwise recorded. Customary law “rests heavily on an individual’s unspoken agreement about how rights and obligations will be regulated between community members.”[5]

It is important to note that customary law is law. This is true despite the common misconception that customary law is lesser than other forms of law.[6] Due to these misconceptions, some Indigenous peoples don’t like to use the term “customary law,” fearing that it will discount the substantive content of said law.[7] Nevertheless, “although customary law is just one source of Indigenous law, it is a vital part of all Indigenous legal regimes.”[8]

Some countries have recognized the importance of Indigenous customary law through referencing the right of Indigenous communities to live according to their customary law systems.[9] I’m sure it doesn’t come as a surprise to many, but Canada has certainly not taken this step. Rather, Canada has often taken a very limited response to recognizing Indigenous customary law, with one notable exception: adoption of children.

In the 1972 case of Re Deborah, the Court of Appeal for the Northwest Territories examined whether the custom of “Eskimo adoption” (as it was then called) should be recognized under Canadian law, or whether the provincial adoption legislation overrode these systems.[10] The Court held that provincial legislation was not intended to override the customary law of the Indigenous groups in the Northwest Territories, and that to decide otherwise “would be to deprive many of these people of a custom that is so valuable to the safety and survival of children…”[12] and thus did not interfere with the traditional customary adoption.

Indigenous legal traditions, including customary law, have provided and continue to provide guidance to Indigenous peoples in the resolution of their disputes.[13] To varying degrees, the laws of Indigenous nations continue to dictate how their particular societies operate. However, due to the ongoing process of colonialism, many of these laws have been eroded over time, and attempts have been made by the Canadian state to water-down or discredit many of these laws.[14]

Indigenous legal scholar, John Borrows, has talked about the immense benefits to Indigenous peoples and to the wider public that would result if Indigenous legal traditions “were given the space to grow and develop.”[15] It is about time that the Canadian state recognizes its multi-juridical nature, and recognizes the importance and legitimacy of Indigenous legal traditions in this country.

Until next time,

Team Reconcili-ACTION YEG

[1] John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 24. [2] Ibid at 55. [3] Ibid at 24. [4] Sebastien Grammond, Indigenous Peoples Customary Law and Human Rights- Why Living Law Matters (New York: Routledge, 2014) at 7. [5] Supra note 1 at 51. [6] Ibid at 10. [7] Ibid. [8] Ibid. [9] Ibid at 29. [10] Re Deborah (1972) 28 DLR (3d) [NWTCA]. [11] Ibid at 485. [11] Ibid at 488. [12] John Borrows, “Indigenous Legal Traditions in Canada” (2005) 19 Wash U JL & Pol’y 167 at 196. [13] Ibid. [14] Ibid at 197.

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