Gavin Howe
Indigenous legal orders and laws exist and have existed for millennia, governing territories and actively managing land and water. They are diverse, resilient, and deeply interconnected, with sources in creation stories, oral traditions, customs, and positive/man-made law. Despite this, Indigenous laws have been neglected, oversimplified, and portrayed as cultural beliefs rather than complex intellectual processes. Western law has been imposed on Indigenous people, and the Canadian legal system, for example, has tried to ignore, subvert, and prohibit Indigenous legal orders. However, there is a growing recognition of the need to make space for Indigenous laws within the legal system, which will require lawyers and the judiciary to learn about and engage with these laws. This process of articulating, revitalizing, and applying Indigenous law is collaborative and deliberative and aims to uphold Indigenous peoples' right to decision-making over their territories.
| Characteristics | Values |
|---|---|
| Indigenous laws are diverse and resilient | Recognition of Indigenous laws |
| Indigenous laws are complex intellectual processes for reasoning, decision-making and social ordering | Understanding and engaging with Indigenous rights |
| Indigenous laws are flexible and adaptable to changing circumstances | Tolerance, respect for minorities, pluralism |
| Indigenous laws are specific to Indigenous peoples | Serious engagement with Indigenous laws |
| Indigenous laws are independent of state recognition | Reconciliation |
| Indigenous laws are based on community well-being and interconnectedness | Self-governance, self-determination |
| Indigenous laws address conflict and promote healing and reconciliation | Safe spaces for Indigenous peoples |
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What You'll Learn
Recognise the existence of Indigenous legal orders and laws
Recognising the existence of Indigenous legal orders and laws is a crucial step towards reconciliation and respecting the rights of Indigenous peoples. Indigenous laws are diverse, resilient, and deeply interconnected with their communities' cultural beliefs, values, and ways of life. They are shaped by sources such as creation stories, oral traditions, customs, and positive/man-made laws, and they govern how Indigenous peoples interact with each other and their surroundings.
For centuries, Indigenous nations have effectively governed their territories according to their own legal systems, which emphasise balance, adaptability, and interconnectedness. These laws are not merely a set of rules but a way of thinking and reasoning, influencing decision-making and social ordering. They are integral to the identity and self-determination of Indigenous communities, and they exist independently of recognition from external states or legal systems.
However, Indigenous legal orders and laws have often been overlooked, oversimplified, or even prohibited by colonial governments and legal systems. This neglect has resulted in a lack of representation within legal professions and a disconnect between Indigenous and Western legal traditions. Recognising the existence of Indigenous legal orders is, therefore, a critical first step.
By acknowledging the validity of Indigenous legal orders, Western legal systems can begin to create space for these laws to coexist and be effectively utilised. This recognition aligns with principles such as tolerance, respect for minorities, and pluralism, which are valued in countries like Canada. It also underscores the importance of initiatives like the Truth and Reconciliation Commission's Calls to Action, which advocate for the adherence to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Legal practitioners and members of the judiciary have a responsibility to understand and engage with Indigenous laws and perspectives. This includes learning about the complexities and unique characteristics of these legal traditions, such as their decentralised enforcement and holistic view of the law. By embracing this knowledge, Western legal systems can better serve Indigenous communities and move towards true reconciliation.
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Understand Indigenous law as a complex intellectual process
Indigenous law is a complex intellectual process that is deeply interconnected with the communities' customs, songs, stories, language, and ceremonies. It is a way of thinking and governing themselves, solving problems, and shaping behaviour.
Indigenous legal traditions were important organizing forces that guided relationships and addressed conflicts in Indigenous societies before the imposition of Western law. These traditions are flexible and adaptable, emphasizing personal and community balance. They are not compartmentalized into different areas of law like Western legal systems but are instead interconnected and intertwined, with a common theme of kinship. For example, community well-being is maintained through "family law", "criminal law", "law of obligations", and "environmental law", which are all part of a person's kinship network and responsibilities.
Indigenous law is not merely a set of rules but a complex intellectual process that involves reasoning, decision-making, and social ordering. It is a way of understanding and interpreting the world, with a deep connection to the land, the spirit world, and water.
Understanding Indigenous law requires recognizing the diversity and resilience of Indigenous legal systems, which have survived despite overt and racist attempts to ignore, subvert, or prohibit them. It is important to acknowledge the existence of Indigenous legal orders and their distinctiveness from common law and Aboriginal law.
To truly comprehend Indigenous law, it is essential to engage with Indigenous communities, scholars, and legal professionals who can provide insights into the complex intellectual processes that underlie their legal traditions. This engagement is a necessary part of reconciliation and creating space for Indigenous legal orders in Canada and beyond.
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Interpret Indigenous sovereignty and the right to self-determination
Indigenous sovereignty is a prized term within indigenous discourse, denoting an agglomeration of legal, social, economic, political, and cultural rights. It has varied meanings, ranging from the formulation of rights to reverse continuing experiences of colonialism, as well as to carry local efforts at the redemption of ancestral lands, resources, self-governance, and preservation of cultural knowledge and practices.
Indigenous sovereignty may not have a fixed contour, but it essentially confronts the idea of a "uniform empire". It is a source from which the right to self-determination stems and challenges the political and moral authority of states controlling indigenous populations within their territory.
Indigenous peoples' ability to exercise the right to self-determination has been significantly limited in countries around the world due to colonisation and the deliberate and targeted exclusion from decision-making processes. However, the right to self-determination for indigenous peoples is recognised under international law. Articles 3 and 4 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) confirm that indigenous peoples have the right to self-determination. This means that countries like Australia are obliged to ensure that indigenous peoples have a say about their social, political, cultural, and economic needs.
Indigenous law is law. It is how people govern themselves and solve problems together. Indigenous legal orders are specific to indigenous peoples and are independent of recognition from the state. They are deeply interconnected and flexible, adapting to changing circumstances. They emphasise personal and community balance and are informed by sources such as custom, songs, stories, language, and ceremonies.
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Learn about the Aboriginal perspective and reconciliation
Learning about the Aboriginal perspective and reconciliation is crucial to strengthening the connections between Aboriginal and Torres Strait Islander peoples and non-Indigenous peoples. Here are some ways to gain a deeper understanding:
Education and Resources
Victoria University's Indigenous Academic Unit, Moondani Balluk, offers a wealth of resources, including courses and units with an Aboriginal focus. Additionally, organisations like Australians Together provide free, easy-to-use resources and professional learning courses designed to bring First Nations perspectives into classrooms. These resources are created in collaboration with First Nations writers, academics, and cultural advisors, ensuring a comprehensive and structured approach to learning about Indigenous perspectives.
Cultural Awareness and Events
Engaging with cultural centres and participating in events can provide valuable insights into Aboriginal perspectives. The Bunjilaka Aboriginal Cultural Centre at Melbourne Museum offers virtual and in-person tours of the First Peoples exhibition, allowing visitors to explore the timeline of Indigenous Australians. National Sorry Day, held before Reconciliation Week, encourages Australians to reflect on the mistreatment of Indigenous peoples and learn from past mistakes. NAIDOC Week, observed in July, is another significant event that celebrates the history, culture, and achievements of Aboriginal and Torres Strait Islander peoples.
Acknowledging Traditional Custodians
Recognising the traditional owners and custodians of the land is an important step towards reconciliation. The AIATSIS map of Indigenous Australia helps identify the traditional owners of specific regions. Beginning meetings and events with an Acknowledgement of Country or Welcome to Country shows respect for the traditional custodians and their history. This simple act promotes greater understanding and strengthens relationships between Indigenous and non-Indigenous Australians.
Understanding Intergenerational Trauma
It is essential to recognise that Australia's colonial past is marked by violence, oppression, and dispossession. The trauma and historical violence experienced by Aboriginal communities have had intergenerational effects. Understanding this context is crucial to addressing the public perception that Aboriginal people are responsible for their own struggles. By acknowledging this history, we can work towards reconciliation and building a brighter future together.
Exploring Indigenous Law
Indigenous law, distinct from Aboriginal law, refers to the legal traditions and practices of Indigenous peoples. These laws are deeply interconnected with their communities and the land, water, and spirit world. Understanding Indigenous law provides insights into how Indigenous communities governed themselves and resolved conflicts before the imposition of Western law. By valuing and incorporating Indigenous legal principles, we can work towards a more inclusive and respectful legal framework that acknowledges the unique perspectives and needs of Indigenous peoples.
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Engage with Indigenous laws in the legal profession
The Canadian legal system must first acknowledge the existence of Indigenous legal orders and laws to make space for them in the legal profession. Indigenous legal systems are diverse and resilient, and they have survived despite overt and racist attempts by Canadian governments and legal systems to ignore, subvert, and prohibit them.
The recognition of Indigenous laws has been inadequate so far, but there is room for improvement in the Aboriginal law context and in the common law more generally. For instance, the primary goal of Section 35 of the Constitution, which is reconciliation, can only be achieved by giving equal weight to the Aboriginal perspective and the perspective of common law. Thus, it is incumbent on legal practitioners and members of the judiciary to understand the Aboriginal perspective.
However, there are concerns about how to engage with Indigenous laws in the legal profession, given that only a small percentage of the judiciary and legal profession are Indigenous. Non-Indigenous people may struggle to engage with Indigenous laws, but it is a necessary part of reconciliation. The Truth and Reconciliation Commission's Calls to Action, which call for the recognition of Indigenous legal orders and adherence to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), have provided momentum for this work. With government support, this moment presents a significant opportunity to create and occupy space for Indigenous legal orders in Canada, for the benefit of both Indigenous and non-Indigenous peoples.
As lawyers, we must take Indigenous laws seriously as laws and consider all the effective uses we may make of them, raising them in all appropriate contexts. For example, the Tsleil-Waututh recently utilised their laws to conduct an assessment of a major resource project in their territory, following their own legal processes and supported by numerous expert reports and Coast Salish legal principles. Ultimately, they decided that the project posed unacceptable risks and could not proceed.
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Frequently asked questions
Indigenous laws are legal traditions that governed behaviour, guided relationships, and addressed conflicts in Indigenous societies before the imposition of Western law. These laws are diverse and resilient, and they are often informed by sources such as creation stories, oral traditions, customs, and positive/man-made laws.
Indigenous laws are deeply interconnected, emphasizing personal and community balance. They are flexible and adaptable, unlike Western legal systems that compartmentalize different sections of law, such as criminal law, contract law, and constitutional law.
Recognizing Indigenous laws is a necessary part of reconciliation and respecting the rights of Indigenous peoples. By acknowledging and engaging with Indigenous legal orders, Western legal systems can demonstrate their commitment to principles of tolerance, respect for minorities, and pluralism.
Western legal professionals should take Indigenous laws seriously and consider their effective uses in appropriate contexts. They should also be open to learning about the Aboriginal perspective and understanding the complexities of Indigenous legal systems.
Incorporating Indigenous laws can lead to better decision-making by recognizing the deep relationships that Indigenous peoples have with the land, the spirit world, and water. It also empowers Indigenous communities by giving them a voice in shaping the laws that govern them and promoting self-governance.
