3 Indigenous Laws

Introduction

Canada is a multi-juridical country. Many people are familiar with the common law and civil law but are unfamiliar with Indigenous laws, a relatively untapped body of law, legal traditions, history and teachings that are thousands of years old. Indigenous law and Aboriginal law are very different. Indigenous laws are the legal traditions of the respective Indigenous Peoples that continue to exist independent of Western legal systems. Aboriginal law is the constitutional protection of the rights of Indigenous Peoples under the Canadian constitutions, made by the courts and legislatures, that governs Aboriginal-Crown relationships .

Indigenous laws are not uniform across Canada. Each individual nation has different laws and teachings. It is important to remember that law is a human construction and subject to change. Law forms a set of rules that guide a specific society; it is ever changing and informed by social, economic, and political factors.[1] Val Napoleon, Director of the Indigenous Law Research Unit (“ILRU”) and Law Foundation Chair of Indigenous Justice and Governance with the Faculty of Law at the University of Victoria, suggests that “[a]t its most basic level, law is collaborative problem solving and decision-making through public institutions with legal processes of reason and deliberation.”[2]

Indigenous societies were not lawless before the enforcement of common and civil law systems in Canada. They had unique systems in place to manage all aspects of political, economic, and social life, including human violence, transgressions, and the “general messiness of collective life.”[3] Important elements of Indigenous laws were, and still are, accessing and distributing resources, resource management, and conservation of lands and waters. It is important to also learn about Indigenous laws and how they can be utilized and incorporated into the colonial legal system. The Indigenous Law Research Unit (ILRU) at the University of Victoria Faculty of Law has done much work on gathering Indigenous laws and teachings and presenting them in a way that is intuitive to judges, lawyers, and law students alike. This section will first touch on Accessing Justice and Reconciliation Project (“AJR Project”),[4] in relationship with ILRU’s research,  and then discuss specific laws and teaching of the Secwépemc nation.

“The legitimacy and efficacy of any stable legal system requires the collective capacity to decide the substance of law as well as its: (1) ascertainment (agreement of what law is); (2) change (how law is changed and why), and (3) application of law (when law is broken and appropriate legal response).”

– H.L.A. Hart, Concept of Law 2nd ed. (New York: Oxford University Press, 1994).

 

Sources of Indigenous Laws

What is the source of common law precedents? Some may answer the decisions that the court renders and others may think it is instead the stories of people. The body of case law in Canada results from people coming to court and telling their stories, then those who listen to the stories derive meaning from them and it establishes a precedent. Indigenous laws can also be traced back to oral histories and stories with multiple sources. John Borrows, the Canada Research Chair in Indigenous Law, argues that Indigenous societies have at least five sources of law: sacred, deliberative, custom, positive, and natural.[5] These sources are not mutually exclusive and in actuality, “Indigenous legal traditions usually involve the interaction of two or more . . . sources.”[6]

Borrows offers up the following examples of each source of Indigenous laws:

  • Sacred law: creation stories and treaty relationships.
  • Natural law: relationship with the natural world.
  • Deliberative law: talking circles, feasts, council meetings, and debates.
  • Positivistic law: proclamations, rules, regulations, codes, teachings, and Wampum readings
  • Customary law: marriages, family relationships, and recent land claim agreements.[7]

Drawing out Indigenous Laws from Traditional Knowledge

Where or how does one distil laws from Indigenous Peoples’ cultures? The Narrative Analysis Method,[8] developed by Hadley Friedland and Val Napoleon through their work for the AJR Project, attempts  to answer this question. By starting with a specific research question, the methodology then expands by collecting stories[9] that relate to the research question. The methodology acknowledges that stories are retold in varying forms, that include and exclude information. It is thus necessary to collect as many versions of the same story as possible to have a wholistic understanding—much like triers of fact who hear the stories of many parties to distil what the factual details are. Friedland and Napoleon then go on to articulate a modified case brief model that draws out the law, similar to a Fact, Issue, Rule, Analysis, Conclusion (“FIRAC”) or Fact, Issue, Law, Analysis, Conclusion (“FILAC”)  brief of condensed annotated notes on each story. These case brief methods should be familiar to law students in common law systems. The third phase engages a framework which includes a primer, synthesis, and preliminary legal theory development. By utilizing a transparent analytical framework,[10] case brief information is organized “in an accessible, convenient way so it can be more readily analyzed, applied, added to, and adapted to present circumstances in a principled manner.”[11] It does not alter information. From here, the preliminary legal theory is developed before leading into phase four: implementation, application, and critical evaluation. This final phase remains ongoing, allowing opportunity for inviting other communities to add their stories and analysis to enhance the preliminary legal theory.

After developing the Narrative Analysis Method, Friedland has been invited to many communities to engage and facilitate the process of deciphering Indigenous laws from stories. One of these communities has been Kamloops itself, where Friedland facilitated a research project with the Shuswap nation Tribal Council (SNTC),[12] which focussed on children and family development in the Secwépemc nation. As an example of how the Narrative Analysis Method works in action, read the interactive book below, The Story of Owl, and engage with the case brief framework at the end. These tools have been leading in Indigenous Peoples’ advancement to achieving reconciliation by being able to acknowledge and articulate their governing laws in a manner that “fits” into the common-law interpretation.

Secwépemc Laws and Teachings

The Secwépemc nation have their own set laws and teachings, but like many Indigenous Peoples, these laws were in the form of traditional oral stories. Oral stories are not readily recognized as law by the colonial system. It is therefore necessary to distil law from these oral stories and present it in a way that is more congruent with the Canadian legal system.

i. The Seven Sacred Laws

The starting point for Secwépemc law are the seven sacred laws. The seven sacred laws have been passed down from Chief Coyote and they demonstrate the foundational values that are embedded in Indigenous law. The seven sacred laws state that everyone, including family, friends and enemies, must be treated with:

  1. respect
  2. spirituality
  3. trust
  4. humility
  5. patience
  6. generosity
  7. honesty.[13]

These laws served as a basis and guide when examining and interpreting Secwépemc laws from a multitude of sources, including but not limited to the traditional stories, oral histories, pictographs and petroglyphs, Secwépemctsín and Secwepemcúlcw.[14]

ii. Secwépemc People, Land, and Laws: Yerí7 Re Stsq’ey’s- Kucw

Another Secwépemc law resource is Secwépemc People, Land, and Laws: Yerí7 Re Stsq’ey’s-Kucw by Dr. Marianne Ignace, a professor and researcher of linguistics and anthropology, and Chief Dr. Ronald Ignace, a member of Secwépemc Nation and former Chief of the Skeetchestn Band.[15] The Ignaces also derive law from stories and traditional Secwépemc knowledge and laws relating to the land.[16] Secwépemc People, Land, and Laws is a compendium of information. It provides a detailed account of the Secwépemc Peoples over the past 10,000 years. It is narrated through the voices of past and present elders and knowledge keepers.[17] The collection of all these laws, stories, and traditions into a written text helps to “legitimize” the knowledge in the eyes of colonial learning institutions and legal systems; it is a powerful source of information that may not have been accessible to law students previously. However, it is important to remember that these teachings are no less valuable in the traditional oral form.

iii. The Stsmémelt Project

In 2009, 17 Chiefs of the Secwépemc nation committed to a nation-based approach to achieve full jurisdiction over Secwépemc children and families. This project, in part, hoped to address the disproportionate amount of Indigenous children in the foster care system, including in Secwepemcúl’ecw. The Secwépemc nation’s Tek’wémiple7 Research Unit developed a casebook of Secwépemc laws with the supervision of Dr. Val Napoleon and Hadley Friedland to employ their methodology.[18]  They identified and extracted principles, laws, and values from Secwépemc stories. In 2013, the Tek’wémiple7 Research unit released the Stsmémelt Project, a 115 page Tribal Case Book that described some Secwépemc Stories and Legal Traditions. Since then, there have been subsequent partnerships with ILRU to identify stories and legal traditions specific to land and resource law.[19]

One of the stories and subsequent case briefs from the Stsmémelt Project has been included in these materials. For more stories and case briefs, check out the full Tribal Case Book.

The above excerpt from the Tribal Case Book demonstrates how a traditional story can be used to draw out legal principles and law. Presenting the story in the form of the case brief allows for a greater understanding by non-Indigenous legal professionals, increasing the likelihood that Indigenous laws will be accepted and applied in the colonial legal system.

  1. Val Napoleon, “What is Indigenous Law? A Small Discussion” (2016), online (pdf): Indigenous Law Research Unit: University of Victoria <www.uvic.ca/law/assets/docs/ilru/What%20is%20Indigenous%20Law%20Oct%2028%202016.pdf> [perma.cc/E3AV-T8EJ]. ↵
  2. Ibid. ↵
  3. Ibid. ↵
  4. Hadley Friedland & Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (2015-2016) 1:1 Lakehead LJ 16. ↵
  5. Napoleon, supra note 1. ↵
  6. Val Napoleon, “Thinking About Indigenous Legal Orders” (revised) in Colleen Shepard & Kirsten Anker, eds., Dialogues on Human Rights and Legal Pluralism (Springer Press’ Seriesm, lus Gentium: Comparative Perspectives on Law and Justice, 2012) at 55. ↵
  7. John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 23. ↵
  8. Hadley Friedland & Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (2015-2016) 1:1 Lakehead LJ 16. ↵
  9. Stories include: songs, dances and art, in kinship relationships, in place names, and in the structures and aims of the institutions in each society. For further examples, see Val Napoleon, Ayook: Gitksan Legal Order, Law, and Legal Theory (PhD Dissertation, University of Victoria, Faculty of Law, 2009) [unpublished]. ↵
  10. Hadley Friedland & Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (2015-2016) 1:1 Lakehead LJ 16 at 28-29. ↵
  11. Ibid. ↵
  12. Kelly Connor, “Tribal Case Book – Secwepmec Stories and Legal Traditions: Stsmémelt Project Tek’wémiple7 Research” (7 January 2013), online (pdf): Secwepemc Strong <secwepemcstrong.com/wp-content/uploads/2021/02/Tribal-Case-Book.pdf> [perma.cc/VFN6-WS7L]. ↵
  13. "Esk’etemc Beliefs and Philosophies" (1 May 2021 last visited), online: Esk'etemc <www.esketemc.ca/beliefs-and-philosophy/> [perma.cc/CFP9-GN4V]. ↵
  14. Connor, supra note 12 at 6. ↵
  15. Marianne Ignace & Ronald E. Ignace, “Chapter 7 Re Stslexemúĺecwems-kucw Secwépemc Sense of Place” Secwépemc People, Land, and Laws Yerí7 re Stsq’ey’s-kucw (Toronto: McGill-Queen’s University Press, 2018). ↵
  16. Ibid at 15. ↵
  17. Ibid at 11. ↵
  18. Connor, supra note 12. ↵
  19. Jessica Asch, Kirsty Broadhead, Georgia Lloyd-Smith and Simon Owen, “Secwepemc Lands and Resources Law Research Project” (Victoria: Indigenous Research Unit, 2018). ↵

License

Implementing Truth and Reconciliation Commission Calls to Action Copyright © by Nicole Schabus (academic lead). All Rights Reserved.

Share This Book