Tansi Nîtôtemtik,
In today’s post, we will look at efforts toward restoring and revitalizing Indigenous law in Canada. Unlike common law, which is constituted by statute and case law, or civil law, which is codified in a set of rules and regulations serving as a primary source of law, there is no ‘one’ Indigenous law. First Nations, Inuit, and Métis communities across the country may have different laws and legal traditions that govern behaviour within their communities, and relationships with other communities.
Revitalizing Indigenous law is a process that involves reviewing and restoring laws to meet the needs of communities today. [1] Revitalization is a key step in sustainable self-governance, and was highlighted in the Truth and Reconciliation Commission’s Final Report:
Call to Action 50 - In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada. [2]
Revitalization of Indigenous law and governance is an essential part of reconciliation. Canadian law is regarded as “deeply adverse to realizing truth and reconciliation for many First Nations, Inuit, and Métis people. [3] The Indian Act, and the prohibitions and sanctions that flowed from it, caused immense damage to Indigenous communities across Canada.
President of the Canadian Bar Association, Bradley Regehr, highlighted the importance of Call to Action 50, saying "[It] demands that governments recognize Indigenous peoples had and have legal traditions, and that they provide space for those traditions within the fabric of Canadian jurisprudence." [4]
To support Call to Action 50, the federal government has made funding available to not-for-profit and non-governmental organizations, educational institutions, Bands, Tribal Councils, self-governing First Nations, Métis and Inuit communities. [5] One organization that has been working towards revitalization is the Indigenous Law Research Unit.
The Indigenous Law Research Unit (ILRU) at the University of Victoria is dedicated to revitalizing Indigenous laws. [6] The Institute follows a research process that engages and collaborates with communities through five phases. Each phase heavily involves the Indigenous communities whose laws it is looking at. After research and consultation is completed, a legal report is presented to the community for implementation. [7] ILRU believes that “Indigenous laws need to be taken seriously as laws”, and their research process seeks to strengthen the laws for implementation in modern society. [8]
Centering the community in the process is one of the most important aspects of Indigenous law revitalization. Research includes interviews with Elders and oral history projects, and all information and quotes are reviewed with the community contributor before being published in the final report.
ILRU also engages in education and provides workshops. Their vision “is for Indigenous laws to be living and in use on the ground, and to be researched, taught and theorized about just as other great legal traditions of the world are.” [9]
Another initiative, supported by the federal government, is the Certificate in Indigenous Law offered at the University of Ottawa. This was introduced as a program that “will draw on Indigenous approaches, adopting experiential and holistic teaching methods and connecting interdisciplinarity and learning by doing. Learning through observation, oral traditions, field stays and textual analysis will also be favoured. Courses will be given mainly by Indigenous professors. The presence of elders will be highly valued, with speakers who convey Indigenous culture regularly invited, to encourage the oral transfer of legal knowledge.” [10]
In August 2022, the Government of Canada released a statement in support of this certificate, and provided funding for the program over the next three years. [11]
However, the implementation of this program may not be fulfilling the Call to Action. On the University of Ottawa website, the program description states that “The Certificate in Indigenous Law program aims to minimize the culture shock experienced by Indigenous learners while studying law. It also aims to enable them to acquire basic legal skills which will help them to successfully complete the Licentiate in Law.” [12]
This seems disconnected from the program as it was originally announced. Instead of focusing on Indigenous law, this program seems to be focusing on how to prepare Indigenous students to assimilate into Canadian legal systems. This is entirely contrary to the goals of truth and reconciliation.
In contrast, the work that ILRU does is essential in ensuring the success of self-governing communities. Indigenous law is law. Sustained and intentional efforts to support Call to Action 50 are necessary on the path toward truth and reconciliation.
I hope that the University of Ottawa ensures that the Certificate is furthering Indigenous knowledge in Indigenous law, so that efforts towards revitalization are supported. If the Certificate program is merely preparing Indigenous students for work in the existing Canadian common and civil law legal systems, then it is missing the mark.
Until Next Time,
Team ReconciliACTION YEG
For more information on Indigenous law, please check out the ILRU Resource Page
[1] Department of Justice Canada, “Justice Partnership and Innovation Program” (last modified 8 Aug 2021), Government of Canada, online: <www.justice.gc.ca/eng/fund-fina/jsp-sjp/pfo-pfc.html>.
[2] 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 (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 260.
[3] Ibid at 256.
[4] Brigitte Pellerin, “Creating a space for Indigenous laws to flourish” (1 Jun 2021), CBA/ABC National, online: <nationalmagazine.ca/en-ca/articles/law/rule-of-law/2021/creating-a-space-for-indigenous-laws-to-flourish>.
[5] Supra note 1.
[6] Indigenous Law Research Unit, “Indigenous Law Research Unit” (last visited 6 Feb 2023), online: <ilru.ca/>.
[7] Indigenous Law Research Unit, “Research” (last visited 6 Feb 2023), online: <ilru.ca/research/>.
[8] University of Victoria Law, “Indigenous Law Research Unit (ILRU)” (last visited 6 Feb 2023), online: <www.uvic.ca/law/about/indigenous/indigenouslawresearchunit/index.php>.
[9] Ibid.
[10] uOttawa, “University of Ottawa’s Civil Law Section offers new certificate in Indigenous law” (21 Jan 2022), online: <www.uottawa.ca/about-us/media/news/university-ottawas-civil-law-section-offers-new-certificate-indigenous-law>.
[11] Department of Justice Canada, “Revitalization of Indigenous laws a priority for the Government of Canada: Supports first-of-its-kind certificate program with University of Ottawa” (17 Aug 2022), Government of Canada, online: <www.canada.ca/en/department-justice/news/2022/08/revitalization-of-indigenous-laws-a-priority-for-the-government-of-canada-supports-first-of-its-kind-certificate-program-with-university-of-ottawa.html>.
[12] Supra note 10.
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