Indigenous Legal Traditions (review)

In recent years the Law Commissions of former British colonies have been at the forefront in engaging with their Indigenous peoples to better understand their laws. For example, in 2001 the New Zealand Law Commission published its report Maori Custom and Values; in 2006, the Law Reform Commission of Western Australia published its Aboriginal Customary Laws, Final Report: The Interaction of Western Australian Law with Aboriginal Law and Culture; and in that same year the Law Commission of Canada published a report titled Justice Within: Indigenous Legal Traditions.

Indigenous Legal Traditionsis an important contribution to this scholarship. The five chapters cover a diverse range of topics. In the first chapter, titled " 'Getting to a Better Place': Qwi:qwelstom, the Stó:lō, and Self-Determination," Ted Palys and Wenona Victor write of how the Stó:lō government is taking responsibility for criminal-justice issues in relation to its people. This excellent chapter concludes with six bullet-point challenges for Canada to encourage the dreams of Aboriginal people (p. 34). The second chapter, Paulette Regan's "An Apology Feast in Hazelton: Indian Residential Schools, Reconciliation, and Making Space for Indigenous Legal Traditions," is a personal account of this event, during which the Git xsan people hosted a feast to address the colonial legacy of Indian residential schools. As Regan states,

the Hazelton feast is a story about moving from Western law to Indigenous law in coming to terms with Canada's colonial past, recognising its ongoing legacy, and finding new decolonising, transformative ways of working together to repair the damaged relationship that exists between Indigenous peoples and Canadians.

(p. 41)

In the third chapter, titled "Reconciliation without Respect? Section 35 and Indigenous Legal Orders," Minnawaanagogiizhigook (Dawnis Kennedy) posits that "[i]f Canadian law is to guide the Canadian state in maintaining respectful relations with Indigenous peoples, it must first participate in the establishment of such relations between Indigenous and Canadian legal orders" (p. 80). In confronting this challenge, she focuses on four Supreme Court judgments, spanning the terms of three Chief Justices, that turn on interpreting the constitutional recognition of Aboriginal and treaty rights in s. 35: R. v. Sparrow, R. v. Van der Peet, R. v. Mitchell, and R. v. Marshall; R. v. Bernard.

The fourth chapter—"Legal Processes, Pluralism in Canadian Jurisprudence, and the Governance of Carrier Medicine Knowledge," contributed by the late Perry Shawana—describes how Indigenous laws and legal processes are well positioned to govern Indigenous knowledge in his chapter entitled. Shawana's text emphasizes the urgency of this question: "Whether dominant legal processes and traditions can play a role in supporting the desires of Indigenous people to control their knowledge is an important debate in which we must engage" (pp. 120–21).

Ghislain Otis superbly pens the final chapter, "Territoriality, Personality, and the Promotion of Aboriginal Legal Traditions in Canada." Otis focuses on the role of territory in implementing Aboriginal self-government in Canada. This is a timely piece that provides a way forward for those Aboriginal peoples that do not reside on Aboriginal territory, and, moreover, a way to "move beyond the colonial reserve" (p. 157).

I thoroughly enjoyed reading this book and highly recommend it to all persons interested in better understanding the legal desires of Aboriginal peoples and the current challenges they pose to Canada's legal system. The one oddity, however, is that nowhere do any of the authors refer to the Law Commission's 2006 publication, Justice Within: Indigenous Legal Traditions. It would also have been useful if Andrée Lajoie, in her introduction to the volume, had sought to situate it within emerging Indigenous legal theory—or, at least, alluded to it—to provide references for newcomers to this subject. Nonetheless, there is much strength in this book, and I join the contributors in expressing regret that the author of chapter four, Perry Shawana, is no longer with us to continue his ground-breaking work in developing an original, and very exciting, critique of legal pluralism.

I concur with the urging of the back-cover...