Written by Alannah Jensen
Canada's legal landscape is deeply rooted in colonial history, a history marked by centuries of displacement, assimilation, and systemic injustice against Indigenous peoples.
From the early days of settler colonialism under the British Crown to the establishment of the Canadian state, Indigenous peoples have endured policies designed to erase their cultures, undermine their systems of governance, and strip them of their land. But in the face of this dark history, Indigenous communities have maintained their legal orders—systems of law and governance that have evolved over millennia.
Today, as Canada grapples with issues of social justice and decolonization, it is time to recognize and integrate these legal orders into the broader Canadian legal framework.
A Legacy of Colonial Injustice
The colonial policies imposed by the British Crown and the Canadian government caused widespread devastation to Indigenous peoples. Land was seized under the doctrine of “discovery,” Indigenous economies were disrupted, and traditional ways of life were criminalized. The Indian Act of 1876 institutionalized the forced assimilation of Indigenous peoples, prohibiting cultural practices, banning ceremonies like the potlatch, and imposing residential schools that caused untold harm. The systematic removal of children from their families and the abuse they suffered in these institutions left a legacy of trauma that still affects Indigenous communities today.
The legal mechanisms that facilitated this injustice were, in many cases, “legally authorized,” creating a deeply entrenched system of laws designed to enforce colonial control.
These laws, though framed as legitimate under the Canadian state, were built on principles that denied the very existence of Indigenous legal systems and governance. Yet, Indigenous peoples never abandoned their territories nor their laws. They resisted, adapted, and kept their legal orders alive—despite relentless efforts to extinguish them.
The Power of Indigenous Legal Orders
Indigenous legal orders are not just remnants of the past; they are dynamic, evolving systems that continue to guide Indigenous communities.
These systems are rooted in a deep connection to the land, the environment, and relationships among people. They offer a holistic approach to governance, justice, and community well-being, with principles that contrast sharply with the individualistic, commodified logic of colonial law. These legal traditions are grounded in reciprocity, respect, and the recognition of interconnectedness, offering invaluable insights for today’s world.
The legal recognition of Aboriginal rights has made significant strides in recent decades, particularly with the enshrinement of Aboriginal and Treaty Rights found in Section 35 of the 1982 Constitution Act. In the landmark Sparrow case, the Supreme Court of Canada affirmed that Aboriginal Rights, once recognized, could not be extinguished.
This ruling opened the door for further developments in case law, including decisions that acknowledged the unique nature of Aboriginal Title and the need for the Crown to consult with Indigenous communities on matters that affect their rights.
Taken together, these developments have created a growing legal space for the assertion of Aboriginal rights and governance.
From Colonial Law to Pluralism
Despite these advancements, the Canadian legal system remains heavily influenced by colonial structures. John Borrows, a leading scholar in Indigenous legal traditions, argues that the way Canadian courts have approached Aboriginal law—insisting on continuity with pre-contact practices—perpetuates a colonial framework. By requiring Aboriginal rights to be framed in terms of pre-contact customs, Canadian courts limit the ability of Indigenous peoples to adapt their legal systems to contemporary realities. However, Indigenous legal traditions have always been adaptive, evolving to meet the needs of communities.
It is time for Canada to move toward a pluralistic legal system that recognizes the full diversity of legal orders that exist within its borders. Canada’s legal framework is not monolithic—it encompasses common law, civil law, and, crucially, Indigenous legal orders. These different legal traditions should not be seen as competing, but rather as complementary systems that can work side by side, each bringing its strengths to the table. This pluralistic approach would recognize the legitimacy of Indigenous laws and governance structures, creating a legal system that is truly inclusive of all peoples.
The Two Row Wampum: A Vision for Legal Pluralism
One powerful symbol of how legal pluralism could work in Canada is the Two Row Wampum treaty, which was used by the Haudenosaunee (Iroquois) to illustrate their relationship with European settlers.
The Two Row Wampum belt is a beadwork design featuring two parallel rows, one for the Indigenous people and one for the Europeans. The rows are separated by three beads that represent peace, friendship, and respect. The metaphor is clear: two vessels, traveling down the same river, each in their own boat, side by side, but not steering the other’s course.
This vision of legal relationships is an ideal guide for Canada’s future. It suggests that Indigenous peoples should be able to continue governing their lands and communities according to their own laws and traditions, while coexisting with the broader Canadian legal system. Just as two boats can navigate the same river without interfering with each other, Indigenous legal orders and Canadian common law can coexist and even complement each other.
The Need for Legal Education and Cooperation
For this vision of legal pluralism to become a reality, there must be a concerted effort to educate both Indigenous and non-Indigenous peoples about the importance of Indigenous legal orders. As Chief Justice Lance S.G. Finch has pointed out, most lawyers and judges in Canada are unfamiliar with Indigenous languages, cultures, and worldviews. It is imperative that members of the legal profession—law students, judges, and practicing lawyers—take responsibility for learning about Indigenous legal systems. Building relationships with Indigenous communities is essential for creating a legal framework that respects and incorporates their laws.
This responsibility goes beyond the legal profession. Canadians should engage in this learning process as well, recognizing the value of Indigenous legal traditions and their potential to contribute to a more just, equitable society. Understanding the history of settler colonialism, acknowledging the existence of Indigenous laws, and working to integrate these systems into the broader legal fabric of Canada will help mitigate the harm caused by centuries of colonial rule.
Reimagining the Future: A Path Forward
The integration of Indigenous legal orders into Canada’s legal system is not just a matter of legal theory; it has real-world implications for justice, governance, and community well-being. Indigenous legal systems provide valuable insights into how we might address pressing challenges like environmental degradation, social inequality, and the erosion of community cohesion.
For example, the principles of reciprocity and stewardship embedded in Indigenous legal systems offer an alternative to the capitalist model of consumption and environmental destruction. In the context of environmental law, Indigenous legal orders encourage sustainable relationships with the land, prioritizing long-term care over short-term exploitation. This approach could be key in tackling the global crises of climate change and environmental degradation.
Furthermore, Indigenous concepts of justice (such as restorative justice) offer a more holistic approach to conflict resolution. The Cree medicine wheel, for example, takes into account the physical, emotional, spiritual, and intellectual well-being of individuals, emphasizing healing and restoration over punishment. Incorporating such principles into the Canadian legal system could help foster more inclusive, community-oriented forms of justice.
Conclusion: A Legal System for the Future
Canada’s legal system should evolve to reflect the diversity of legal orders that exist within its borders. Indigenous legal traditions have long been a part of the fabric of this land, and it is time to recognize their value and integrate them into the broader legal system. By embracing a pluralistic legal framework that incorporates common law, civil law and Indigenous legal orders, Canada can begin the process of true decolonization.
This will not be an easy process, but it is one that is necessary if Canada is to heal from the wounds of colonialism and build a more just, equitable future. It is time for Canada to recognize and respect the legal orders of Indigenous peoples—not as a relic of the past, but as living, evolving systems of law that can contribute to the well-being of all Canadians. Through education, collaboration, and mutual respect, we can begin to create a legal system that reflects the values of all peoples who call this land home.