The Emergence of Aboriginal Jurisprudence: Decolonizing the Canadian Legal System

by Caryma F Sa'd on Jul. 30, 2018

Civil & Human Rights 

Summary: This paper argues that the Canadian legal and constitutional framework needs to be constructed on a broader, multi-juridical base, namely one that recognizes Aboriginal legal traditions as “giving rise to jurisdictional rights and obligations.”

Introduction

The legal grounds for the recognition of Aboriginal jurisprudence in Canada are encapsulated in the Supreme Court's ruling in Mitchell v. M.N.R., which affirms that "Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights." Despite this pronouncement, however, the role of Indigenous legal philosophy in Canadian courts remains somewhat limited. Certainly, the classification of Aboriginal rights as sui generis, or unique, enables the court to consult Aboriginal jurisprudence for the purposes of correctly interpreting and applying these rights. Yet it can be argued that the use of Aboriginal jurisprudence in the existing system has meaning beyond proving a framework for the interpretation of sui generis rights; indeed, the use of Aboriginal legal philosophy may offer a post-colonial future for the Canadian legal order.
    The following paper will endeavour to prove that Aboriginal jurisprudence should play a more significant role in the Canadian legal system, in order to both better protect Aboriginal rights, and correspondingly to trigger the decolonization of the existing legal order. To begin, the paper will examine Canada's colonial history, looking specifically at how the large-scale dispossession and cultural genocide of Aboriginal peoples were legally and morally justified by the colonial legal system. The next section will provide a brief overview of the status of Aboriginal rights in Canadian society, and attempt to show how Aboriginal jurisprudence could prove instrumental in the definition and interpretation of Aboriginal rights as protected by s.35(1) of the Constitution Act, 1982. Finally, the paper will conclude with a conceptualization of Aboriginal jurisprudence in the Canadian context, and consider some of the potential issues surrounding the application of Indigenous legal traditions into the current order. Ultimately, this paper argues that the Canadian legal and constitutional framework needs to be constructed on a broader, multi-juridical base, namely one that recognizes Aboriginal legal traditions as "giving rise to jurisdictional rights and obligations." Indeed, the Canadian judiciary should integrate elements of Aboriginal jurisprudence into the prevailing judicial consciousness so as to bring about the decolonization of the current legal order.

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