[95] This method can be successfully used by jurists trained in the civil law tradition in Canada to deal with Aboriginal laws. We hosted a workshop on this approach for lawyers trained in the civil law tradition, academics from non-legal disciplines, and members of Indigenous communities in Ontario and Quebec as part of SSHRC-funded “Project Legitimus.” See Aboriginal Law Research Unit, University of Victoria, “Methodology Workshop” (held at the University of Ottawa, December 14-15, 2015) [unpublished]. Sébastien Grammond, who generously translated documents from English to French during the workshop, points out that in Canada, lawyers trained in the civil law tradition also learn case analysis because they have to apply it in constitutional, public and criminal cases (interview with Sébastien Grammond, December 15, 2015). Now we want more. It is high time. For the present and future health of Indigenous societies, it is essential that we continue to move forward. Indigenous legal traditions are fundamentally about Indigenous citizenship, self-determination and governance. They contain the intellectual resources and tools of public reason and reflection essential to addressing the internal and external challenges facing Indigenous communities today. These challenges are manifold and include issues of authority and legitimacy, community security, land and resources. Interest in serious and systematic engagement with Indigenous legal traditions is growing in Canada in professional, academic and Indigenous communities. If we are to sustain and nurture this movement, we need a common framework to address Indigenous legal traditions within and between Indigenous legal traditions, professionals and academia. International and national discourse on Indigenous self-determination requires critical and informed research on Indigenous legal traditions – global traditions that include “deeply rooted and historically conditioned attitudes about the nature of law, about the role of law in society and community, about the proper organization and functioning of a legal system.
and how laws are made, applied, studied, perfected and taught. [4] Ultimately, therefore, the law is created, maintained or destroyed by day-to-day interactions in communities of legal practice. The legal obligation cannot be reduced to the existence of formal rules; It is carried out in the continuous practice of communities that discuss with norms and communicate through them. [94] [58] HLA Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 87-88. While Hart discussed the internal perspective of judicial officials, we are extending this internal perspective to citizens, as is appropriate for non-state jurisdictions without designated legal officials. One of the authors (Friedland) noted a similar emphasis on active listening when interviewing Cree elders in northern Alberta. Attempts to be a mere scribe or a cipher have often been thwarted. After an elder told the story of an animal talking, he stopped and asked, “What do you think? Do you believe me? Attempts at diatribe about an answer were immediately countered by a lot of laughter and a more direct question: “Well, you heard the story, what do you think now? [48] At another level, another Elder, after telling several stories and patiently discussing the Indigenous legal topic of interviews for several hours, raised a current community situation and asked if it fit the legal issue.
In order to seriously answer this question, the interviewer had to not only listen or record passively, but also integrate and apply the knowledge shared by the senior. [49] Indigenous peoples also apply the intellectual traditions of group empowerment by integrating useful external knowledge into the present. For example, from 1969 to 1981, at a time when many Plains Indigenous peoples were suffering terribly from the hammer blows of colonization, Raymond Harris, an Arapaho healer from Wyoming, taught many Cree, Dene and Saulteaux the Arapaho traditions of the sweat lodge. In this way, Harris ensured that the old healing practices were not lost and continue to this day, albeit in a suitable form. [69] It was a practical, local and highly effective intellectual tool that enabled people to cope with change and resistance by renewing and reviving old practices. People were able to consciously seek out new resources and integrate them into existing traditions. We can apply the same intellectual processes of renewal to carefully integrate useful new tools into familiar methods of learning and teaching Indigenous legal traditions. According to the TRC, “the revival and application of Indigenous law” would not only benefit Indigenous communities, but would also improve the relationship between Indigenous peoples and governments “and the nation as a whole.” [15] To achieve such reconciliation, “Indigenous peoples must be able to find, learn and practice their own distinct legal traditions.” [16] These far-reaching Calls to Action to strengthen the recognition and implementation of Indigenous laws in Canada are, to our knowledge, the first time that a major government-funded report has used Indigenous law terminology.
