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Legal Pluralism

Tansi Nîtôtemtik,

Around this time last year, I was sitting in class listening to students debate on legal pluralism. This conversation focused on the recognition of Indigenous laws. Surprisingly, several students stated that they did not believe co-existence was possible, and perhaps even confusing. That was until the professor reminded them that Canada already has two legal systems that co-exist, with very little questioning from the average Canadian: common law and civil law. Today's blog will explore, at a very basic level, the role of legal pluralism and reconciliation.

Illustration: Jean-Bernard Ng Man Sun for the McGill Reporter

Legal pluralism has been defined in numerous ways, but generally, it is a situation where two or more legal systems co-exist in the same society. It encompasses “a long historical pedigree and exists everywhere from localized communities to international systems.”[1] It tends to be rooted in the historical and political context of the society, which means that there is no standardized relationship between the state and non-state.[2]

Canada is not unique in having more than one legal tradition within a single state; for example, even Great Britain has two: England and Scotland. Countries with two legal traditions are called bijural countries, and multijural is the term to accommodate states where several forms of customary law and traditions co-exist. [3] In the conversation of reconciliation, the Truth and Reconciliation Commission (TRC) states that reconciliation is “an ongoing process of establishing and maintaining respectful relationships” with the purpose to repair “damaged trust by making apologies, providing individual and collective reparations, and following through with concrete actions that demonstrate real societal change.[4] Establishing respectful relationships also requires the revitalization of Indigenous law and legal traditions.”[5]

In Canada, the plurality of legal tradition has long existed, first beginning with legal pluralism among the Indigenous societies across Great Turtle Island in what is now known as Canada. [6] Many years later, legal pluralism on these lands continues. However, many recognize the common law and civil law systems only, to the exclusion of Indigenous legal traditions. Commitment to reconciliation requires a “commitment to respectful relationships that are founded on understanding the past and creating a non-colonial future.”[7] This process requires a commitment to the revitalization of Indigenous legal traditions that are grounded in “local Indigenous law and experiences.”[8] This process requires the “respective legal order to relate, connect purpose, aspirations, and function of law rather than the actual form of law or public legal institutions through which law operates.”[9]

The recognition of the values and norms of Indigenous people’s legal systems is an important step towards reconciliation. This requires broadening the legal view in Canada and “moving towards a real legal pluralism that answers the Indigenous groups, according to the new world view of multiculturalism taking place in a modern Western world.”[10]

With this said, there is no simple method for the arrival of an “integrally intertwined journey of reconciliation or legal pluralism.”[11] Rather, as demonstrated by my class discussion, the fight for reconciliation and the recognition of legal pluralism will be contested. But we must continue to promote reconciliation through education and keeping important topics such as the value of legal pluralism at the top of mind.

Until next time,

Team Reconcili-ACTION YEG

[1] Val Napoleon, “Legal Pluralism and Reconciliation” (2019) 11 Maori L Rev at 5 [Napoleon]. [2] ibid at 5. [3] Marie-Claude Gervais, “Some Thoughts on Bijuralism in Canada and the World” (2021), online: Department of Justice Canada <> [4] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) [TRC Summary Report]. [5] Ibid. [6] Napoleon, supra note 1 at 5. [7] Napoleon, ibid at 6. [8] Ibid. [9] Ibid. [10] Morad Elsana, Legal Pluralism and Indigenous Peoples Rights: Challenges in Litigation and Recognition of Indigenous Peoples Rights, 87 U. Cin. L. Rev. 1043 (2019) at 1074. [11] Napoleon, supra note 1 at 16.

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