RECOGNIZING INDIGENOUS LAW

A CONCEPTUAL FRAMEWORK

Abstract

Current efforts towards the revitalization of Indigenous law are likely to translate into greater demands for recognition by the Canadian legal system. This paper aims to provide a conceptual framework for the analysis of such claims. It first clarifies the concept of Indigenous law and highlights certain challenges raised by the interaction of Indigenous and Canadian law. It then distinguishes the Canadian legal system’s delegation of law-making authority to Indigenous bodies from its recognition of Indigenous peoples’ pre-existing, or inherent, law-making powers. For each model, four aspects of the interface between legal systems are analyzed: which Canadian legal actor takes the initiative of establishing a relationship with Indigenous law? How is Indigenous law expressed so as to be intelligible for non-Indigenous jurists? To whom, and to what territory is Indigenous law applicable? And what constraints does the relationship impose on the contents of Indigenous law? Lastly, the paper describes how Canadian courts judicially review decisions made by Indigenous decision-makers regarding Indigenous law.