Indigenous Legal Traditions in Canada

Indigenous Legal Traditions in Canada

Indigenous legal traditions in Canada

Aboriginal communities in Canada can be regarded as Canada’s early law practitioners. These individuals lived in communities and nations throughout the country, developing standards and rules governing their social interactions, regulating trade, and settling disputes among communities (Justice, 2006, p. 1). The various traditions among the communities became highly developed systems of law, which governed aboriginal cultures in community management, the environment, and human relations.

There is an urgent need for individuals to comprehend that the first Europeans to establish their feet in Canada understood the legal traditions of the people and often complied with indigenous rules (Justice, 2006, p. 1). Business transactions, for example, were often carried out following local traditions. For example, donations, credit extension, and trade regulations were typically based on indigenous legal notions. Alternatively, Indigenous women and European men were celebrated in the personal realm according to indigenous legal customs. However, persons must know that aboriginal legislation has been less influential in the face of expanding colonization in Europe. For example, a collaboration that existed before the arrival of Europeans was replaced by assimilation strategies. The Indigenous legal traditions of the 1800s were primarily disregarded, and many traditional activities and ceremonies were forbidden. Children from Aboriginal communities were removed from their homes and forced to attend residential schools where it was forbidden to use their indigenous languages (Justice, 2006, p. 2).  This article examines the history of indigenous legal traditions in Canada, the advantages and challenges of integrating indigenous law components into Canada’s legal system.

The European settlement in Canada was profound and disastrous for Aboriginal laws, customs, and communities. Many Aboriginal groups in contemporary Canadian society are struggling with extreme poverty (Justice, 2006, p. 2). Their cultural identity and their communities have been broken down as a result of decades of assimilationist practices. However, it is essential to emphasize that most aboriginal communities maintain and develop their laws and continue to be directed in governance and resolution of disputes. Alternatively, several of the communities have begun reassuring and revitalizing their traditions and beliefs. Enabling Aboriginal people to develop indigenous laws according to their traditions can be crucial in helping the health of Aboriginal communities and reconciling Canada and aboriginal peoples.

Civil law traditions have their roots in Roman law in Canada. The law was initially codified in the Corpus Juris Civilis of Justinian. In mainland Europe, the law was initially formed before it extended to other parts of the world. Civil law in Canada originally stemmed from King Louis XIV’s Decree that New France would be by the custom of Paris, the body of law that ruled Paris’s region. Since Britain reintroduced the civil law into the Quebec Act of 1774, civil law has lasted in Canada (Borrows, 2006, p. 216). It realized that the best way to ensure order and a degree of loyalty was to make people closer to their customs and beliefs. The civil law interpretative tradition stresses the significance of broad concepts and expresses deeper social commitments. Thus, civil law in Canada has a solid legal tradition because of its historical use and its interaction with the society in which it applies.

Before the arrival of Europeans, the common law legal tradition was widespread. One can realize that the origin of the law has developed from the traditions of the people. The common law started as a custom and was the product of many cultures throughout medieval England (Borrows, 2005, p. 196). It emerged from a society in which a wide range of civilizations enforced a variety of laws. When the English Governors arrived and enforced their application at their new home, the common law was exported to Canada (Glenn, 2014, p. 362). In contemporary Canada, the common law heritage functions through stare decisions and court hierarchy. The law plays a crucial role in ensuring uniformity in law and tries to prevent arbitrariness in decision-making. The common law in contemporary Canadian culture is a hierarchy of courts. The highest level in this hierarchy is the Supreme Court of Canada, which has provincial appeals courts and trial courts below. Hierarchy plays an important part in removing arbitrariness from the legal system of Canada.

Indigenous customary laws

People need to know that legislation can arise wherever human interaction creates expectations of good behavior. Customary laws are inductive and are distinguished by studying certain behavioral routines and procedures in the community. Individuals and notably Aboriginal communities in medieval Canada have developed different spiritual, political, and social practices and norms to inform their connections (Coyle, 2017, p. 6). Current Canadian legislation on indigenous peoples originates in and is drawn from these systems of law. Indigenous legal traditions often also rely on elders or sanctioned wisdom guardians to determine and transmit law. It is consequently necessary for individuals to understand how indigenous peoples can engage in their traditions in the process of interpretation.

The inherent right to self-government, including the federal government, has been chiefly acknowledged as being covered in Aboriginal rights and treaty rights protected under Section 35(1) of the Constitution Act, 1982 (Justice, 2006, p. 2). Aboriginal communities have moved to create governing systems and dispute resolution procedures reflecting their values and traditions.

Why incorporate indigenous law into the Canadian legal system

The need to revitalize indigenous legal traditions is critical in the context of current Canadian law. Studies suggest that establishing prosperous Aboriginal communities is intimately tied to genuine Aboriginal control over decision-making, including law enforcement decisions (Justice, 2006, p. 8). Practical autonomy and good governance based on culturally relevant institutions were considered crucial to Aboriginal communities’ economic, social, and political success. The authority to enact culturally relevant legislation and to develop fair dispute resolution systems are vital parts of good governance.

Cultural matches are required for legal systems and governing structures to be acceptable and legitimate. A high level of cultural compatibility fosters the support of the community members. Conversely, legislation and governance institutions that do not reflect the culture and values lack legitimacy (Borrows, 2006, p. 215). Laws based on traditions and beliefs would be more relevant and meaningful to its members and improve the community’s rule of law.

Because indigenous legal traditions are rooted in the distinct cultures of aboriginal groups and nations, the restoration of indigenous cultures can play an essential role in encouraging indigenous ways of thinking and acting (Justice, 2006, p. 8). The influence of colonization is notwithstanding, and indigenous cultures remain distinct. Native cultures are viewed as crucial to the health of Aboriginal communities as their expression and progress.

Challenges

One of the major obstacles that people have while integrating indigenous law into the Canadian legal system is the bad relations between Canada and the indigenous communities. Sadly, the disputes between indigenous people and the Canadian legal system are far too many, in particular in criminal law. According to Schmeiser, almost 90 percent of Saskatchewan’s female prison population is constituted of indigenous women. Can indigenous people just commit more crimes? Such a conclusion is short-sighted and ignorant. In his investigation, Schmeiser found that indigenous people were involved in far less serious offenses than other criminals, like violation of provincial registration rules on liquor and vehicles (Morse, 1976, p. 513). The implications of this experience with the judiciary go beyond than the conventional effects, social stigma or trouble in finding employment.

The confrontation between indigenous people and the law does not occur just in the criminal justice system. This also occurs much too often under legislation on child welfare. According to the Laing Survey, there are numerous Indian children in foster care which is a matter of concern (Morse, 1976, p. 515). One can therefore conclude that the indigenous peoples are notably the victims of jurisdictional disputes between the federal and provincial administrations, adding to ‘their bewilderment and dissatisfaction.

Conclusively, a considerable acknowledgment of indigenous legal systems can provide numerous potential benefits for indigenous peoples and the broader society. Creating a favorable environment for developing and flourishing indigenous legal traditions could be vital to enable indigenous peoples to promote their social, economic, and political development in a way that reflects their values and traditions and helps to regenerate indigenous cultures (Borrows, 2005, p. 220). More culturally appropriate legislation and legal institutions can gain more respect from Aboriginal groups and increase the rule of law in their communities.

References

Borrows, J. (2005). Indigenous legal traditions in Canada. Wash. UJL & Pol’y, 19, 167.

Borrows, J. (2006). Indigenous legal traditions in Canada. Law Commission of Canada.

Coyle, M. (2017). Indigenous Legal Orders in Canada-a literature review.

Glenn, H. P. (2014). Legal traditions of the world: Sustainable diversity in law. Oxford University Press, USA, 1-387.

Justice , W. (2006). Indigenous Legal Traditions. LAW COMMISSION OF CANADA.

Morse, B. W. (1976). Native people and legal services in Canada. McGill LJ, 22, 504.

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Description

1.     The concept of “law of the people” is known by many terms.  In the Ruthven text and the Qatar article by Nizar Hamzeh, it is referred to as “tribal” law.  In Glendon, et al, it is termed “custom” in relation to locally developed legal systems in England, Scotland and other countries.  In Canada it is frequently called “indigenous law”. Despite the term used, however, there is a range of legal systems world-wide that have incorporated such customary law into their legal systems. Identify the history of some indigenous legal systems in Canada and the opportunities to incorporate more aspects of indigenous law into Canada’s legal system. Discuss some of the benefits and challenges of increasing the inclusion of indigenous law into the Canadian legal system in the future. You may bring some comparative cases to support your argument.

Students should also refer to at least three sources that were not provided in the course reading, in order to provide a more robust response to the question.  References made to open-source websites such as WIKIPEDIA, blogs or like resources will NOT be given credit, nor references to forums in the course, instructor presentations or other postings by students. In other words, these kinds of references are not to be used for this exam.  Where applicable, be sure to use concrete examples in your answer. Do not refer to moodle course notes or discussion as source.

Please ensure that you provide appropriate references, including page numbers, to APA standards for material where ideas are referenced or short quotations are used.

THESIS and CONTENT

The essay has a clear thesis statement and well-supported thesis. The central idea is developed in the essay through well-chosen, appropriate, concrete details that show depth of understanding. Generalizations are avoided and assertions are defended. The essay is written in a style and tone appropriate to the audience, topic and purpose.

ORGANIZATION

The essay is organized and well structured (there is a beginning, a body, and a conclusion).  It exhibits a clear strategy for persuasion and pattern of development (chronological order, comparison/contrast, etc.).  The organization works with the thesis so that the thesis and the organization contribute to serving the purpose of the essay. Essay does not digress from central point.

RESEARCH AND CRITICAL ANALYSIS

Research selected is relevant to the argument, is presented accurately and completely –implications are all clearly presented; relationship between research and theory is clearly articulated and accurate. Student skillfully evaluates information gathered and can analyze strengths and weaknesses of competing claims. Student show a clear understanding of the concepts studied.

REFERENCES, BIBLIOGRAPHY

Consistently follows appropriate citation style and lists a sufficient amount of relevant sources (academic and non-academic). Does not refer to the study guide/Canvas content as a source.

FORMATTING AND ENGLISH

Clear writing style, with sound spelling and respect of grammatical and essay writing rules. Applies required formatting.

WORD LIMIT (Points will be deducted for going over the word limit)

Over the word limit.

Sources Required:

Please use the following sources PLUS USE 3 MORE OUTSIDE PEER-REVIEWED SOURCES

Borrows, J. (2005). Indigenous Legal Traditions in Canada. Washington University journal of law & policy, 19(1), 166-223.

Law Commission of Canada. (2006). Justice Within: Indigenous Legal Traditions.

Quinn, J. R. (2014). Tradition?! Traditional Cultural Institutions on Customary Practices in Uganda. Africa Spectrum 49. 3, 29-54.

Vieille, S. (2012). Mãori Customary Law: A Relational Approach to Justice. The International Indigenous Policy Journal, 3(1), 1-18.