This is a literature review of publications concerning Indigenous legal orders in Canada, funded by a SSHRC knowledge synthesis grant. This is an update to my 2017 report of the same name.
The suppression of Indigenous legal orders was an integral part of the colonial project to assimilate Indigenous peoples, a project exemplified by Canada’s now notorious experiment with Indian Residential Schools. Long marginalized by the Canadian state, the importance of Aboriginal peoples’ own legal systems has recently been recognized by the Supreme Court of Canada, by academics (including prominent Indigenous scholars) and the Truth and Reconciliation Commission, who all have prioritized the revitalization of Indigenous laws as an essential part of the project of reconciliation and Indigenous self-determination.
This report examines recent writings on Indigenous legal orders in Canada. There has been an explosion of those writings over the past decade, focusing on Indigenous methods of legal reasoning, mapping the legal and spiritual principles embraced by diverse Indigenous peoples in Canada, and the role of universities in transmitting Indigenous methods of legal reasoning. However, partly perhaps because of the skepticism of some about the risks involved in Canadian state or judicial recognition of Indigenous laws, less has been written about practical models for the implementation of Indigenous legal orders in interactions with the state. This report reviews what has been written on these issues and includes recommendations for the strengthening of those orders in a manner consistent with the goal of respectful reconciliation between Indigenous peoples and the Canadian state.
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