NationStates Jolt Archive

My longer introductory post shall follow below, but first I’d like to sum it up with a question.

What are your thoughts on allowing legal pluralism that would respect aboriginal laws?

If this could not possibly apply to you and your country, please still feel free to comment.

Edit: lex loci means 'customary/indigenous law', the law already in place in a certain area.

Over the years, I have come across a number of references to the Doctrine of Conquest, versus the Doctrine of Discovery. The references have been quite troubling, because they seem to be contradictory. Under the Doctrine of Discovery, a land may be declared Terra nullius, or empty. The people who settle these empty lands bring with them the laws of their mother country and 'seed' the land thusly. The Doctrine of Conquest however, states that when lands come under the control of the Crown (whether by actual conquest, or simply by treaty), that the laws of land (the lex loci) remain in place until they are explicitly changed by royal decree, or are immoral or unjust.

Yet, here I am, living in Canada, which was never declared Terra nullius, unlike Australia (only to have this declaration belatedly undone in Mabo). The Doctrine of Conquest clearly was in play when Treaties were sought with my people. In fact, this Doctrine was adhered to when what is now Quebec became a British holding. In that province, the French civil code remains. Nonetheless, the lex loci of my people have never been explicitly overturned, and yet our laws have been treated in fact as having been nullified somehow by settlement.

This perplexes me for many reasons, but above all, for the fact that it seems to fly in the face of the usual practices of the British Empire at the time. Legal plurality within Britain stretched back to the days of the Romans, through the Norman invasions, and on past the Tudor consolidation. The Doctrine of Conquest was invoked in British holdings in India and Africa. Local laws, the lex loci, were kept in place in all British colonies EXCEPT for Canada, Australia, New Zealand. Even the United States set up a system of tribal courts still in place today.

Nothing I have ever come across has explained this deviation. Our laws were never extinguished, and there is no historical justification for disallowing a legal plurality in Canada that includes aboriginal laws. In fact, it would seem that the courts in our three nations have improperly applied constitutional principles for over a century now, violating the constitutional framework these nations were founded on.

Point being...I'm seeing some very recent, and very compelling cases that may reverse this error, and it's bloody fascinating. Thoughts?

Thoughts?
What is lex loci?

What is lex loci?

Superman's arch enemy. *nod*

What is lex loci?

Sorry, I thought I made that clear enough, but it's in my longer post. Lex loci refers to customary laws, or the laws already in place when a new 'boss' comes into town. The term 'lex loci' tends to be used rather than 'customary laws' so as to avoid the negative connotation that (unfairly) 'customary' tends to have in regards to law.

Sorry, I thought I made that clear enough, but it's in my longer post. Lex loci refers to customary laws, or the laws already in place when a new 'boss' comes into town. The term 'lex loci' tends to be used rather than 'customary laws' so as to avoid the negative connotation that (unfairly) 'customary' tends to have in regards to law.

Silly native languages. ;)


Yes, I know it's latin

Silly native languages. ;)


Hahahahahahaha...well...Latin est an terrigenus lingua.

I'm for legal pluralism in cases where there's a traditional basis, sure. Provided it's not to far outside reasonable community standards and is constitutional, it should exist. As it happens, I don't think Indians generally tinker too much with the laws as they stand either way though, since of all the times I've been through Indian territories of different kinds, I've never noticed much difference. :p

I'm for legal pluralism in cases where there's a traditional basis, sure. Provided it's not to far outside reasonable community standards and is constitutional, it should exist. As it happens, I don't think Indians generally tinker too much with the laws as they stand either way though, since of all the times I've been through Indian territories of different kinds, I've never noticed much difference. :p

Do you mean Indians with a feather, or with a dot? And are you in the US or elsewhere? I really can't speak much about the tribal courts in the US, since I'm only now getting enough of a legal basis to begin really examining them. I do know, however, that what has been proposed here (and in some cases, is already being implemented) may not look like a big change from the regular system, but can have some very profound differences in ideological foundation which are quite important. The outcome may not vary that much, but the reasons for the outcome can be wildly divergent. I say that's important, because in validating local laws, you are not just validating the laws themselves, you are validating a worldview, and that alone can have a very deep impact on a people

Do you mean Indians with a feather, or with a dot? And are you in the US or elsewhere? I really can't speak much about the tribal courts in the US, since I'm only now getting enough of a legal basis to begin really examining them. I do know, however, that what has been proposed here (and in some cases, is already being implemented) may not look like a big change from the regular system, but can have some very profound differences in ideological foundation which are quite important. The outcome may not vary that much, but the reasons for the outcome can be wildly divergent. I say that's important, because in validating local laws, you are not just validating the laws themselves, you are validating a worldview, and that alone can have a very deep impact on a people

Indian with the feather. :p I'm in the U.S., so I've mostly been around Cherokee Nation in Oklahoma and a bunch of other, slightly smaller areas in Arizona, New Mexico and California. I stayed with a friend for about a week once, who lived in a suburb that was part of Indian land, so that's where most of my observations come from. :)

Anyway, what I meant to say about my experience on Indian territory was more about the implementation than the significance to the people, which of course is much more important, I would agree. I suppose what I meant by tradition (broadly speaking) being important, rather than local culture, was that many immigrant groups might want local control of their laws, but that for historical reasons, I would think priority should be given to the different Indian tribes. The sort of thing I've heard about, with Shari'a law being implemented in civil disputes in parts of Canada, makes me think that tradition and general constitutionality would figure in more heavily, since the public here would probably want to avoid something that might provide a loophole for some of the more unsavory Islamic traditions, just as one example. Indian laws here have strayed a bit from the Constitution on occasion, as I recall, but not to a degree that's any threat to the powerful in D.C. :)

What are your thoughts on allowing legal pluralism that would respect aboriginal laws?
It would depend on the aboriginal laws in regards to their scope and importance. Federal criminal laws apply to ALL Canadians, and it is my opinion that they should remain as such.

Also would aboriginal laws apply to all aboriginal people? If not, then it is possible that confusion would reign supreme.

Perhaps you could provide some examples of aboriginal laws that would be better then the prevailing Provincial/Federal laws?

As I live (as I'm sure you all know, because I jabber about it in all of Neesika's aboriginal threads, I live in a town that is largely on Indian land. I've never known the fact that the Indians have their own legal system be an issue. In fact, it helps my town immensely because Michigan law forbids gambling, but the casino the tribe operates creates jobs (the tribe is the largest employer in the county) and brings in tourism.

For those who aren't sure what is being talked about, here is how the tribe that is local to me defines its jurisdiction.

SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, JURISDICTION
DEFINITION. For the purpose of enforcement of this Code, the Community
Court's jurisdiction shall be deemed to extend to all land within the exterior
boundaries of the Isabella Reservation and all land within the control of the Tribe at the Saganing Reservation pursuant to Article II of the Amended Tribal
Constitution. The jurisdiction of the Saginaw Chippewa Indian Tribe of Michigan shall extend to all crimes committed within the Isabella or the Saganing Reservations including those crimes set forth under the Major Crimes Act in 18 USC 1153, which by their very nature must be transferred to U.S. District Court, Eastern District of Michigan for disposition.

1.502 PERSON TO WHOM JURISDICTION EXTENDS. Any Indian, who is found within the territorial jurisdiction of this Court as defined in Section 1.501, or who has allegedly committed an offence defined in this Code, shall be subject to the jurisdiction of this Court.

1.503 TRIBAL COURT JURISDICTION. The Court shall have criminal jurisdiction over all offenses enumerated in this Code, when committed by a person within the jurisdiction of the Saginaw Chippewa Indian Tribe of Michigan.

Tribal Code, in annoying PDF format (http://www.sagchip.org/tribalcourt/code.htm#)

It would depend on the aboriginal laws in regards to their scope and importance. Federal criminal laws apply to ALL Canadians, and it is my opinion that they should remain as such. I agree that the bulk of criminal laws should remain applicable to all Canadians. However, when it comes to sentencing, there are already alternatives available that do fit in very well with indigenous legal traditions. For example, depending on the severity of the crime, a sentencing circle might be used, with elders, members of the community, and the person who was the victim of the crime. In some cases with Youth criminals, part of the sentence has been spending supervised time with elders in the bush, or going through other cultural programs in an attempt to curb future delinquency, and create alternatives to gang ties, etc. I think these things should continue to be implemented. They are not only applicable to aboriginal people either, they have been used in non-aboriginal settings, with appropriate changes in the 'cultural curriculum'.

Nonetheless, for the most part, the laws in question would be dealing with civil matters in aboriginal communities, and include a limited criminal scope that would not conflict with the federal criminal code. Of course, the political organisation of these aboriginal communities, being so interwoven with the legal tradition, would also be affected.

Also would aboriginal laws apply to all aboriginal people? If not, then it is possible that confusion would reign supreme. Aboriginal laws would be jurisdictional. The would not be a single set of laws for all aboriginal people everywhere in Canada, because we have many different legal traditions. The laws would apply in regards to matters under the specific jurisdiction of aboriginal communities. So, for example, laws dealing with property on a Reserve, or in a Metis Settlement would be within the jurisdiction of the tribal court, but an aboriginal person living outside the Reserve would deal with regular Provincial legislation.

Perhaps you could provide some examples of aboriginal laws that would be better then the prevailing Provincial/Federal laws? Well, a big one would be having the power to enact traditional laws dealing with the system of governance in aboriginal communities. Right now, most communities have governments as set out in the Indian Act, which for the most part in now way actually reflects our traditional methods. Also, human rights legislation needs to come from within the communities, and reflect our communal nature. I have seen a very excellent draft of a Bill of Rights that includes Elders' rights, and protection for communal intellectual property. There are so many areas that could be dealt with via traditional laws...the legal form of our social services, our health services, including regulation of traditional medicine under our laws, etc. To give you one very specific example, the Inuvialuit of the NWT require much more stringent environmental impact assessments for development approval on their lands than are required by the Federal and Territorial governments.

Tribal Code, in annoying PDF format (http://www.sagchip.org/tribalcourt/code.htm#)

Thanks for the link! This is interesting stuff. The Anishnabe have many very complex legal traditions, and it would be interesting to see how these traditions are interwoven with US laws on tribal lands.

I don't believe in the idea of different law for different groups of people within the same country. Or rather, I don't believe in it if it's based on ethnicity or culture (I'd quite like the idea of being able to live by my own market-libertarian law together with fellow market liberals).

Insofar as a code of law is considered to add something to the body of law, because it's a particularly good way to handle something, it should be added regardless of where it comes from. If it's native law, that's cool. If it's Chinese law, that's cool too. But if a native law doesn't add anything to the functioning of the legal system, it shouldn't be considered just because it's native any more than Chinese law should be considered just because it's Chinese.

As for the historical perspective, there is little I can add to it. As far as practicality is concerned, the best way would probably to forget about it and just work on modifying whatever exists now.

I don't believe in the idea of different law for different groups of people within the same country. 'Same country'...yet we are many nations. The nation of Canada is a political construction...why should that construction be more important than any other? It is passingly young compared to the age of our nations...and I can see no other reason that it should be so revered that only 'Canadian' laws should be allowed to exist.


Or rather, I don't believe in it if it's based on ethnicity or culture (I'd quite like the idea of being able to live by my own market-libertarian law together with fellow market liberals). It's based on nationality. Culture and ethnicity happen to coincide.

Insofar as a code of law is considered to add something to the body of law, because it's a particularly good way to handle something, it should be added regardless of where it comes from. If it's native law, that's cool. If it's Chinese law, that's cool too. But if a native law doesn't add anything to the functioning of the legal system, it shouldn't be considered just because it's native any more than Chinese law should be considered just because it's Chinese. My problem with this is that yes, some laws from different legal systems will be equally applicable and useful to all segments of a society...while others are better tailored to specific segments. If you say, it is only valuable if it is applicable and useful to EVERYONE, you may be losing out on a significant body of law that is in fact quite useful and applicable, even if only to specific segmants of the population.

For example...how useful to you are the laws regulating the way in which elk is to be slaughtered for commercial sale? It is immensely important to the people who hunt elk for commercial purposes.

Indigenous law IS law. It isn't an add on to a system, it IS a system, and one which is fundamentally based on a different worldview than the common law system. It should not be judged by that common law system...it needs to be judged on its own merits. To do that, however, you essentially have to immerse yourself in it, just as I am immersing myself in the common law system. I would even argue that you would have to learn the language in which our laws are written in order to really understand the context. But that is a side-discussion :)


As for the historical perspective, there is little I can add to it. As far as practicality is concerned, the best way would probably to forget about it and just work on modifying whatever exists now.
That may be easiest, but not necessarily what is most practical, considering the severe conditions we face in our struggle for cultural survival. If this is one way we can regain our cultural health, then it may indeed be more 'practical' to go this route, despite the initial difficulty. The common law system has many centuries of experience dealing with legal pluralism...we are not reinventing the wheel here.

To answer the question as to my own values, I think traditional law should be respected to the greatest extent possible.

Speaking to the legal question, a form of positivism seems to predominate in Canadian legal thought, and under this theory native laws were never really "law" in the first place.

The Doctrine of Conquest, in positivist theory, applies to conquered people who had a system of laws. But because a system of laws must, for the positivist, satisfy certain criteria, any system of rules that does not meet these criteria simply is not "law." Since "primitive" societies usually do not meet these criteria, the Doctrine of Conquest does not apply to them.

While similar legal theories hold sway in American jurisprudence, the establishment (for whatever policy reason) of the native courts effectively gave positive recognition to the native law, which is what the theory requires.

I don't think that aboriginals should have their laws respected anymore than street gangs should have theirs respected. Who gives a fuck how they used to do things, they aren't in charge anymore. Do Nazis have their laws respected just because they used to be in charge in Germany? Do German minorities in Poland have their laws respected because they used to be in charge in their respective territories?

Not to say I don't care about the welfare of aboriginals (like any other citizens), but unfortunately, they lose. You don't go to your conquerers and demand compensation or autonomy (unless you have an army, or majority population as is the case in Malaysia).

how can you have sovereignty if you cant have your own laws?

To answer the question as to my own values, I think traditional law should be respected to the greatest extent possible.

Speaking to the legal question, a form of positivism seems to predominate in Canadian legal thought, and under this theory native laws were never really "law" in the first place.

The Doctrine of Conquest, in positivist theory, applies to conquered people who had a system of laws. But because a system of laws must, for the positivist, satisfy certain criteria, any system of rules that does not meet these criteria simply is not "law." Since "primitive" societies usually do not meet these criteria, the Doctrine of Conquest does not apply to them.
I have to disagree with your theory. While it is certainly true that for the last hundred years, this approach has been applied, as though our laws never were laws, I do not think it is for the reason you've mentioned.

Canada inherited the British legal system that already had a long line of jurisprudence in respect to the lex loci of Africa and south Asia. Even in the 60s, British courts were still applying customary laws in its African territories.

It is not the case that the British legal system of the time believed that some societies, being too primitive, simply could not have laws. In fact, all European powers at the time made regular compacts with non-Christian societies in Asia, the Americas and Africa for trade concessions, military alliance etc. Hugo Grotius himself, a founder of the natural law theory, stated in 1646 in De Jure Belle et Pacis that the capacity to enter into binding treaties was "so common to all men that it does not admit to any distinction of religion".

The British did in fact treat with us here, and clearly felt us capable of applying our laws to these treaties in order to make them valid within our societies. There is simply no precedence for the complete lack of acknowledgement of indigenous laws that occurred in Canada, New Zealand and Australia.

As late as 1982, Lord Denning of the Privy Council referred to aboriginal law in the Indian Association of Alberta case:

"They had their chiefs and headmen to regulate their simple society and to enforce their customs. I say "to enforce their customs" because in early societies custom is the basis of law. Once a custom is established it gives rise to rights and obligations which the chiefs and headmen will enforce. These customary laws are not written down. They are handed down by tradition from one generation to another. Yet beyond doubt, they are well established and have the force of law within the community."

Now, for whatever reason, and I believe there are a combination of reasons, our laws were simply forgotten about, and pushed aside. Every time the courts were reminded of our laws, they would quickly turn the subject to something else. There was never any explicit discussion of where our laws had gone, nor of the idea of us never having had laws to begin with by virture of our 'primitive state' or for any other reason.

While similar legal theories hold sway in American jurisprudence, the establishment (for whatever policy reason) of the native courts effectively gave positive recognition to the native law, which is what the theory requires.This is beginning, just beginning to happen here in Canada, over a century late. It is interesting because while some people here are crowing about how quickly we are progressing, they ignore the historical fact that makes this country a complete legal anomaly. We are not progressing...we are trying desperately to catch up.

I don't think that aboriginals should have their laws respected anymore than street gangs should have theirs respected.
So let me get this straight. You would actually violate your own system of laws, and suggest that we continue to violate the constitutional foundation of our nation because....? I mean...hey, if you're willing to ignore your own legal system in this very wide-reaching case, then really, of what worth is your legal system? It is beyond you to say, 'hey, let's do this guys'. Centuries of precedence, in a precedent-based system overwhelmingly veto your small opinion.

Now, your particular attitude to the situation is not uncommon, and I'm quite sure that this view is held and was held by many of the same people that deliberately ignored their own legal principles in order to forget about our laws. But again, I have to ask...of what worth is a legal system that violates its own precepts?



Who gives a fuck how they used to do things, they aren't in charge anymore. But you are incorrect, in a number of ways. We are in fact 'still in charge' in certain senses. For example, we still have title to the land, where that title was not extinguished by Treaty...and remember, not all Treaties we entered into were about title extinguishment. Some Treaties were simply about trade and commerce, or alliance, and never extinguished our title to land at all. This fact is affirmed by the Royal Proclamation of 1763 (http://en.wikipedia.org/wiki/Royal_Proclamation_of_1763), by section 35 (http://en.wikipedia.org/wiki/Section_Thirty-five_of_the_Constitution_Act%2C_1982) of our Constitution, and more recently by Supreme Court cases such as Delgamuukw (http://en.wikipedia.org/wiki/Delgamuukw). Equivalent provisions and cases exist in Australia and New Zealand as well.

So yes. We still own much of the land, this is a recognised fact. If we indeed own our land, then we must be 'in charge' in some sense. In fact, aboriginal self-government exists...putting us back 'in charge'.



Do Nazis have their laws respected just because they used to be in charge in Germany? Do German minorities in Poland have their laws respected because they used to be in charge in their respective territories? Do German minorities in Poland still have title to their land? No. But we do.


Not to say I don't care about the welfare of aboriginals (like any other citizens), but unfortunately, they lose. You don't go to your conquerers and demand compensation or autonomy (unless you have an army, or majority population as is the case in Malaysia).Ahhhh, but you misunderstand the legal term 'conquest'. Conquest comes from the latin con quaestus, which means 'with an inquiry', such as a formal investigation or legal proceeding before a quaestor, a Roman magistrate. The terms victoria or deditio were used when discussing victories over nations. Conquest, con quaestus simply means the lawful acquisition of something, without specifying its precise nature. Property acquired by personal effort, rather by inheritance, is a conquest. The term 'conquest' retained this meaning for a very long time...even territories annexed by treaty were considered to be 'conquered'.

The Doctrine of Conquest refers to and is applied to territories acquired, by war, by treaty, or by other means of 'personal effort'. It does not mean, as you seem to be suggesting that 'all rights of the conquered are lost'. Quite the opposite, actually, as I discussed in my second opening post. You should perhaps read it again...

My longer introductory post shall follow below, but first I’d like to sum it up with a question.

What are your thoughts on allowing legal pluralism that would respect aboriginal laws?

If this could not possibly apply to you and your country, please still feel free to comment.

Edit: lex loci means 'customary/indigenous law', the law already in place in a certain area.
Frankly, given that they've been abused, tortured, and otherwise treated horribly over the years, I say you've got every right to have your own places ruled by your laws, and I would respect them. I have a great deal of respect for the various aboriginal cultures of North America, as I should, given that I'm part Cherokee myself. (A small part, and you'd never know it by looking at me, but it's there.)

Canada inherited the British legal system that already had a long line of jurisprudence in respect to the lex loci of Africa and south Asia. Even in the 60s, British courts were still applying customary laws in its African territories.Yes, but you have to understand that the territories that the British took over in Africa and south Asia "looked" very different (to them) than the territories they (and their inheritors) conquered in North America.

Africa and Asia were, to use the ugly Western term, largely "civilized." Africans in particular, at the time Europeans met them, had complex systems of government including legislative and adjudicating functions. Europeans looked at these systems and saw "law" very much like what they had developed on their own.

In the America's, however, even the best educated observers described what they saw as anarchism--the absence of government. To the extent that some observers watched with fascination as societies managed themselves peacefully without the need for rulers this was a fine day for anarchist thought... but it did not represent what Europeans would recognize as "law."

It is not the case that the British legal system of the time believed that some societies, being too primitive, simply could not have laws.That's partially true, but the question today is really about today's legal theory. Even if, on existing legal theory, the British and Canadians should have recognized native law in the past, the question for judges today is whether they should be compelled to recognize that failure as illegal--and in doing so they can only apply the legal theories of today.

Now, legal positivism is a fairly recent development, with its first major defenders appearing toward the end of the eighteenth century and its most coherent justification in the twentieth century. But it developed in Anglican jurisprudence for a reason: the tone of British thinking had been leaning in this direction for some time, and someone just had to say it.

The trick of positivist theory with respect to primitive law is that it does not force itself to be consistent: if those in authority choose to recognize indigenous law, then it is by definition law. But this means that positivist theory gives a person no way in which to point at another case to say, "But you recognized their law, and mine is just like that!" It doesn't matter, because from the perspective of positivist theory the decision to recognize primitive law is a policy decision, not strictly a legal one. Without positive recognition, it is only to be considered law if it satisfies the criteria of positivist thought.

"They had their chiefs and headmen to regulate their simple society and to enforce their customs. I say "to enforce their customs" because in early societies custom is the basis of law. Once a custom is established it gives rise to rights and obligations which the chiefs and headmen will enforce. These customary laws are not written down. They are handed down by tradition from one generation to another. Yet beyond doubt, they are well established and have the force of law within the community."This goes to show the muddy conception of "customary law" in modern legal theory. They "have the force of law" because they are "enforced," but in the strict positivist sense they are not law because a) to the extent that they are customary it is impossible to distinguish which customs are "law" and which customs are merely custom; b) to the extent that they are customary they are difficult or impossible to change by legal decision--that is, a chief or headman usually cannot say, simply, "this custom is no longer law;" and c) to the extent that they are enforced as custom there is little to no procedural basis for adjudicating "hard cases" when a custom may or may not have been broken.

To qualify as "law" on this theory a system must have all three of these features: it must recognize a clear difference between legal and non-legal customs; it must provide rules as to how customs can be changed; and it must provide procedures as to how cases should be adjudicated. If it is missing one, it is not law.

Now, for whatever reason, and I believe there are a combination of reasons, our laws were simply forgotten about, and pushed aside. Every time the courts were reminded of our laws, they would quickly turn the subject to something else. There was never any explicit discussion of where our laws had gone, nor of the idea of us never having had laws to begin with by virture of our 'primitive state' or for any other reason.To be clear, I'm in complete agreement with you that this treatment is criminal in the highest degree. I also agree that this represents an attempt to bury whatever aspects of the system would qualify as law under operating legal theories. And, for that matter, I am no fan of legal positivism.

My point is simply that under the dominant legal theory today, you don't have much hope of convincing lawyers and judges that this treatment was unjust under the Doctrine of Conquest, because their positivist retort will be that indigenous law did not merit recognition under their theory (regardless of whether it should have been recognized under theories operating at the time).

*snip*but it did not represent what Europeans would recognize as "law." Excellent points really. I wonder what made the government in the US react differently? In so many other ways the treatment we received at its hands was worse than what happened to us in Canada, and yet our laws were validated early on in the US, and not here.

I believe that there were also other important factors to take into account. Population density was lower than in southeast Asia and Africa, especially after the ravages of disease. Many settlers came across us when we were in the midst of a population decline, and economic crisis (in particular on the Plains, with the overhunting of buffalo). The elders say that there was great confusion, and great strife during those times, as some chose to attempt farming at the urging of the British while others split off and moved out of their traditional territories to look for game. By the time the bulk of the settlers reached us in the West, we in the Plains (just as an example) were divided, depleted, and going through an immense cultural upheaval as we attempted to suddenly become farmers. Those that could have best explained our laws to the newcomers were either hiding in the bush, dead, or too busy trying to adapt.

Also, we very quickly became a minority, which made it much easier to discount our laws, unlike in other parts of the Empire where the settlers did not tend to outnumber the indigenous populations.

*snip*It doesn't matter, because from the perspective of positivist theory the decision to recognize primitive law is a policy decision, not strictly a legal one. Without positive recognition, it is only to be considered law if it satisfies the criteria of positivist thought.
Except that in Canada specifically, since the repatriation of our Constitution in 1982, and the inclusion of the Charter of Rights and Freedoms, Canadian law is drifting away from positivism and into the realm of constitutionalism. Parliament is no longer supreme, the Constitution is. You can see how this trend has had a particular impact on aboriginal case law. Before 1982, the cases were almost unanimous in their dismissal of aboriginal rights and title outside of (and even sometimes within) the Treaties. The cases do not claim those rights did not EXIST...they simply refused to discuss or define them.

Now, however, that aboriginal rights are entrenched in the Constitution, it has fallen on the Courts to begin to flesh out what those rights are. The analysis used in the various seminal cases, Van der Peet, Gladstone, Delgamuukw, Powley, etc have been based in Constitutional analysis and on the sui generis nature of aboriginal rights. Whereas previous to 1982, the cases essentially said, 'aboriginal rights are whatever we say they are', the cases now state, 'aboriginal rights exist, are inherent, and and we have to discover what they are...but regardless, these rights are entrenched'.

I believe this is why there will be a rediscovery of the Doctrine of Conquest.

This goes to show the muddy conception of "customary law" in modern legal theory. *snip*
My point is simply that under the dominant legal theory today, you don't have much hope of convincing lawyers and judges that this treatment was unjust under the Doctrine of Conquest, because their positivist retort will be that indigenous law did not merit recognition under their theory (regardless of whether it should have been recognized under theories operating at the time).
This is why the courts, in my opinion, are going to have to reach back a bit further here. There is a rich body of case law dealing with defining customary laws and rights...various tests to prove certain rights etc within the English tradition that can be drawn upon to define aboriginal rights. This will still satisfy the positivist model. As well, the courts have NOT been claiming that these laws did not merit recognition under this theory. Not since 1982 actually. In fact, that view has been expressly rejected for it would render section 35, the entrenchment of aboriginal rights, essentially void.

In relation to aboriginal law, a very different track is being taken, one that is based more on the unwritten, the 'spirit' of the Constitution, rather than on statute etc. As well, there is somewhat of a return to determining what is law in another society based on the perception within that society, rather than through the lens of the English common law. For example...instead of saying, 'this is what land ownership looks like', the courts have been asking (as they did two centuries ago) 'what does land ownership look like to the people in question'. This could be better, or worse, it's really up to the particular interpretations, and it is difficult to predict what will happen. Just because recent decisions have been somewhat 'favourable' does not mean they will continue to be.

So let me get this straight. You would actually violate your own system of laws, and suggest that we continue to violate the constitutional foundation of our nation because....? I mean...hey, if you're willing to ignore your own legal system in this very wide-reaching case, then really, of what worth is your legal system? It is beyond you to say, 'hey, let's do this guys'. Centuries of precedence, in a precedent-based system overwhelmingly veto your small opinion. Well. actually, I am Australian, meaning the doctrine of conquest doesn't apply. Anyhow, I don't pretend to have any great respect for the steaming pile or merde that is our legal system, especially not if you want to include the centuries of form that preceded it. All I am saying is that Aboriginals don't get token autonomy due to an ancient loophole. You stitch up th loop hole, and tell the aboriginals that their rights extend just as far as everyone elses'.

Now, your particular attitude to the situation is not uncommon, and I'm quite sure that this view is held and was held by many of the same people that deliberately ignored their own legal principles in order to forget about our laws. But again, I have to ask...of what worth is a legal system that violates its own precepts? Nothing. A legal system isn't objectively worthwhile at all, it is simply a tool for the establishment to enforce it's agenda with veneer of justice. When Captain Cook declared Australia Terra Nulius he was making somekind of short sighted accident, he knew there were aboriginies, and that he should be implementing the Doctrine of Conquest. But he couldn't be fucked. Imagine subjugating every single tribe across the great continent of Australia just to get a token signature from dozens of elders who didn't even understand or respect what was going on. So he saved time and effort (in the short term) by simply deeming the Aboriginals animals, and Australia terra nulius. The whole point was he was using the legal system to 'take' Australia in the simplest possible way. Suddenly, we have aboriginal councils demanding land rights, compensation, autonomy, and such on the basis of the Captain 'Cooking' the books. I say, "Who are you? Go away, get an army, and then talk to us. You are nothing. So what? The government broke it's own rules. Either way, you now live in their country. Get off my lawn."

It is ridiculous.

But you are incorrect, in a number of ways. We are in fact 'still in charge' in certain senses. For example, we still have title to the land, where that title was not extinguished by Treaty...and remember, not all Treaties we entered into were about title extinguishment. Some Treaties were simply about trade and commerce, or alliance, and never extinguished our title to land at all. This fact is affirmed by the Royal Proclamation of 1763 (http://en.wikipedia.org/wiki/Royal_Proclamation_of_1763), by section 35 (http://en.wikipedia.org/wiki/Section_Thirty-five_of_the_Constitution_Act%2C_1982) of our Constitution, and more recently by Supreme Court cases such as Delgamuukw (http://en.wikipedia.org/wiki/Delgamuukw). Equivalent provisions and cases exist in Australia and New Zealand as well. Again, so what? Do you actually think the establishment is going to allow you to have anything it doesn't want you to have? Ok, so the aboriginals in NT get land grants and shit. I guarantee you that no Eora tribe reprasentative will make a successful land claim on Sydney CBD. Why not? It follows the same logic and precedence of granting dustbowls to aboriginals, why not the city too? Because the system isn't fair, it doesn't work for you, and isn't about justice. It is about enforcing what the government wants. And that government assumed control of your world. They won't give it back on a legal loophole, they'll laugh at you, and stitch it up (Just like John Howard did). The only way you are going to get Autonomy is if to actually constitute a real world concern. Take Quebec, the huge separatist population there is a concern for the Canadian government, and so they will bend the legal system to ease the tension there. Eskimos? They just don't form a real threat, to few, too scattered, too disorganised, too unmotivated. Now if you all bunched together is Saskatchewan, built a valuable economy, then held weekly riots for independence, maybe Canada will take you seriously.

So yes. We still own much of the land, this is a recognised fact. If we indeed own our land, then we must be 'in charge' in some sense. In fact, aboriginal self-government exists...putting us back 'in charge'. Yeah, see above argument. You own the land in name only. The moment you start trying to take that land you 'own', you will be given some tundra, and have said rights stripped.

Do German minorities in Poland still have title to their land? No. But we do. You talk about 'title' as if it is some inviolable paragon of truth. A 'title' is just a notion in the legal system full of holes you are trying to work. In the real world, there are no 'titles', there are just different groups of people, with different levels of control and power. Aboriginal 'titles' exist only because mainstream government tolerate them (It makes them look good). You place too much faith in the legal system.
Ahhhh, but you misunderstand the legal term 'conquest'. Conquest comes from the latin con quaestus, which means 'with an inquiry', such as a formal investigation or legal proceeding before a quaestor, a Roman magistrate. The terms victoria or deditio were used when discussing victories over nations. Conquest, con quaestus simply means the lawful acquisition of something, without specifying its precise nature. Property acquired by personal effort, rather by inheritance, is a conquest. The term 'conquest' retained this meaning for a very long time...even territories annexed by treaty were considered to be 'conquered'. Actually, I wasn't talking about the legal usage of the term (as in doctrine of conquest), I was talking about the common usage of the term (as in France was conquered). Supplant with beaten, pwned, taken, stolen, siezed, or whatever. The point is, In 1787 the Aboriginals were in control of Australia, in 1788, they were not.

The Doctrine of Conquest refers to and is applied to territories acquired, by war, by treaty, or by other means of 'personal effort'. It does not mean, as you seem to be suggesting that 'all rights of the conquered are lost'. Quite the opposite, actually, as I discussed in my second opening post. You should perhaps read it again...Again, not the legal term. When you lose a war against an invading force, you lose all control of your territory and all rights. Maybe, maybe, they will give it back (often partially), but one must remember that this is no longer *your* control. It is their control, delegated in part to you. You effect token control through the new system of power. Same goes for rights. Before, you used to provide and protect your own rights, after- if you are lucky enough to receive any partial rights as conquered peoples- your rights are now provided and protected by their power.

Excellent points really. I wonder what made the government in the US react differently? In so many other ways the treatment we received at its hands was worse than what happened to us in Canada, and yet our laws were validated early on in the US, and not here.
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If I may interject here. Most likely you saw the validation as you call in the US because of the outcry from the public at large. Most of the Indian wars took place within the time frame of the civil war. There was a movement to make things right in the US. Abolishing slavery was part of that. Signing treaties with natives was another way of trying to make things right. However you look at the atrocities that are committed at the hands of the federal government at the time the US has always had a soft side too. That soft side is where the treaties were signed and ratified that cemented many of the native rights as you see them today in the US.

Well. actually, I am Australian, meaning the doctrine of conquest doesn't apply. What makes you say that? Mabo expressly overturned the Doctrine of Discovery when it rejected the concept of Terra nullius. The Doctrine of Conquest would therefore apply, just as it does here, and in New Zealand.

Anyhow, I don't pretend to have any great respect for the steaming pile or merde that is our legal system, especially not if you want to include the centuries of form that preceded it. All I am saying is that Aboriginals don't get token autonomy due to an ancient loophole. You stitch up th loop hole, and tell the aboriginals that their rights extend just as far as everyone elses'. Ah, but you have to be able to do that in a logically consistent, and legal way. What Mabo, and various other cases dealing with aborigine rights in Australia have done is state that there has NOT been a logical, or legal 'closing of that loophole'...and that this is problematic.

You see, legal systems can not be tinkered with too extremely, or they sort of fall apart. You might not like the way it works, but it works the way it does for a reason. You do not want to open yourself up to future appeals, or reversals, so you ensure that what you do is as ironclad as possible. This means you must have legal certainty, you must follow certain procedures, and there must be consistency.

Also...ancient loophole? In legal terms, hardly ancient.


*snip*. I say, "Who are you? Go away, get an army, and then talk to us. You are nothing. So what? The government broke it's own rules. Either way, you now live in their country. Get off my lawn." *snip*

Oh, I agree...the odds are still against us, since we are still working within a system that is inherently out to get the best deal for itself. We can only get as much as this system is willing to allow us to have, and it's never actually going to be enough. HOWEVER...to a certain point, the legal systems of Canada, New Zealand and Australia can only bend things so far. The checks and balances that exist ensure that certain 'loopholes' as you've called them will remain open. So we play the system against itself, as much as we can.

However, the real solution will be a political one, not hammered out in the courts. The courts have been an amazing way of pushing for political solutions. After the Calder decision in 1973, which stated that aboriginal title was a justiciable right in Canadian law, the federal Crown finally agreed to negotiate First Nation land claims. After Sparrow in 1990, giving some meaning to aboriginal rights guaranteed by the Constitution, the Crown began negotiating the scope of those rights. Delgamuukw forced the BC crown to enter into the treaty process. Then comes Powley, discussing Metis rights, and you suddenly had provinces hammering out harvesting agreements with the Metis.

It's a bit of divide and conquer, because the Courts and Parliament are not always aligned. They can be played off against one another, quite successfully.

Yeah, see above argument. You own the land in name only. The moment you start trying to take that land you 'own', you will be given some tundra, and have said rights stripped. Funny that. Because that is not what has been happening. A number of nations have settled their land claims, and have actual possession of their traditional lands once more. The thing is...once those lands are given back, they become Constitutionally protected. Now, unless the Constitution is going to be scrapped, and the entire judicial and political system just tossed into the trash, there is actually no way this can be undone. Not without a Constitutional amendment, which in this country at least, is nearly an impossibility.

You talk about 'title' as if it is some inviolable paragon of truth. A 'title' is just a notion in the legal system full of holes you are trying to work. In the real world, there are no 'titles', there are just different groups of people, with different levels of control and power. Aboriginal 'titles' exist only because mainstream government tolerate them (It makes them look good). You place too much faith in the legal system. Yes, I do put quite a bit of faith in the legal system, because it is also the basis of the political system. As I said, barring revolution, or a descent into blessed anarchy (:D), title exists, legally and politically. Yes, it is a legal fiction, as so many other things are. I am not arguing that there is some sort of inviolate natural title that exists outside of legal systems. I am simply arguing that this title, in this system is a recognised fact, and has been entrenched in the highest law of the land. It is inviolate as long as this legal system continues to exist. That's as good as it's going to get, frankly, in terms of a guarantee.


Actually, I wasn't talking about the legal usage of the term (as in doctrine of conquest), I was talking about the common usage of the term (as in France was conquered). Supplant with beaten, pwned, taken, stolen, siezed, or whatever. The point is, In 1787 the Aboriginals were in control of Australia, in 1788, they were not.

Again, not the legal term. When you lose a war against an invading force, you lose all control of your territory and all rights. Maybe, maybe, they will give it back (often partially), but one must remember that this is no longer *your* control. It is their control, delegated in part to you. You effect token control through the new system of power. Same goes for rights. Before, you used to provide and protect your own rights, after- if you are lucky enough to receive any partial rights as conquered peoples- your rights are now provided and protected by their power.

When a control is taken over a territory, through war, or through other means, the laws of the 'conquering' nation will decide what happens to the rights of the 'conquered'. That is the point. Under the law of the British, the 'conquered' continued to have their legal systems implemented. It really is as simple as that. Now, for whatever reason, that wasn't done in the three countries in question. Perhaps it never will be...you are right in discussing this as a 'delegated' probability. Essentially it will be this legal system, this conquering system, that decides, delegates, or destroys.

We have made some inroads within this system in order to expand the rights 'delegated' to us. The more we learn to use this system, the more we will be able to manipulate it. However, what is more important is giving ourselves some breathing room to become strong again, as nations so that we can stop begging, and start enforcing. In this, we are essentially agreed.

This is a battle with many fronts. The current state of the law regarding aboriginal rights is not legitimate. That is my position, that is my belief. Nonetheless, I must work with this system for the time being, because we do not have the political power to do it any other way. So we will work within, we will work without...and hopefully a combination of methods will allow us to regain our health and allow us to assert our power.

It's really all we can do...all any of us can do. Flux. That's life.

If I may interject here. Most likely you saw the validation as you call in the US because of the outcry from the public at large. Most of the Indian wars took place within the time frame of the civil war. There was a movement to make things right in the US. Abolishing slavery was part of that. Signing treaties with natives was another way of trying to make things right. However you look at the atrocities that are committed at the hands of the federal government at the time the US has always had a soft side too. That soft side is where the treaties were signed and ratified that cemented many of the native rights as you see them today in the US.
I really do not know enough about aboriginal issues in the US, and it's rather bothersome to me. My focus has been on Canada for so long, and only recently on Australia and New Zealand...there is still a lot I need to learn about how things developed differently for us in the US.

Tribal courts were entrenched in the 1880s in the US, this much I know. Much more than that, however, I must admit I am ignorant about.

I think I'd better read some more Vine Deloria Jr :D

Point being...I'm seeing some very recent, and very compelling cases that may reverse this error, and it's bloody fascinating. Thoughts?

Mind enlightening us with examples of such? Sounds interesting.

Personally?

I can see no reason (beyond simple prejudice) why the local legal procedures / traditions were not retained for indigenous people in Canada's case.

Of course I am in no way an expert in legal matters in any country.

The only real thoughts I have are that, given that they haven't been legally overturned, then those concerned should, if they consider these tribal laws better (and from what you've said about racism inherent in Canadian government, I'd be surprised if they weren't), try to get as many people as they can organised in support of restoring these, uh, lex loci.

I really do not know enough about aboriginal issues in the US, and it's rather bothersome to me. My focus has been on Canada for so long, and only recently on Australia and New Zealand...there is still a lot I need to learn about how things developed differently for us in the US.

Tribal courts were entrenched in the 1880s in the US, this much I know. Much more than that, however, I must admit I am ignorant about.

I think I'd better read some more Vine Deloria Jr :D


Likewise I didn't know to much about native issues in Canada either until just a few years ago. After researching the Blackfoot which I am a quarter I learned a little. I always assumed and maybe ignorantly that the Canadian natives were treated the same way as in the US.

Mind enlightening us with examples of such? Sounds interesting.

I'm going to be focusing specifically on Canadian jurisprudence, since it's what I'm most familiar with.

First you need to start off with St. Catherine's Milling and Lumber Co. v. The Queen, (1887) (http://library2.usask.ca/native/cnlc/vol02/541.html), where the Privy Council held that aboriginal title over land was allowed only at the Crown's pleasure, and could be taken away at any time. This was essentially where the law stood for 80 years. It is therefore quite a jump to fast forward to 1996, and see the Supreme Court in R. v. Van der Peet state:

"Section 35(1), it is true, recognizes and affirms existing aboriginal rights, but it must not be forgotten that the rights it recognizes and affirms area aboriginal... Aboriginal rights cannot, however, be defined on the basis of the philosophical precepts of the liberal enlightenment. Although equal in importance and significance to the rights enshrined in the Charter, aboriginal rights must be viewed differently from Charter rights because they are rights held only by aboriginal members of Canadian society. They arise from the fact that aboriginal people are aboriginal...The task of this Court is to define aboriginal rights in a manner which recognizes that aboriginal rights are rights but which does so without losing sight of the fact that they are rights held by aboriginal people because they are aboriginal.

That may sound like a little too much legal mumbo jumbo, but it essentially affirms that aboriginal rights do not exist because the Crown says they do. Aboriginal rights are inherent, and exist even without recognition by the Crown. Those inherent rights are now entrenched in our Constitution, and the courts must deal with aboriginal rights in a manner consistent with constitutional analysis.

The Van der Peet trilogy (including R. v. N.T.C Smokehouse Ltd and R. v. Gladstone) outlined the test to see if an aboriginal right exists. The test is not, as it would have been in the days of St. Catherine's Milling, "has the Crown said a right exists". Instead, the 'Distinctive Culture Test' was formulated. The right being claimed must have been an integral part of the culture of the people claiming the right. That right then is based on practices that were in place before the Crown exerted sovereignty, meaning it draws its validity from aboriginal culture, not from any royal instruments.

This is extremely important, because it means that aboriginal rights exist outside of the Canadian legal system, independent of it, and yet protected by it as well. The task then is to define and understand what these rights are.

In Delgamuukw (1997) (http://en.wikipedia.org/wiki/Delgamuukw), this concept of aboriginal rights was fleshed out some more. Aboriginal title is simply a subset of aboriginal rights. Aboriginal people can have rights that are not land-based, and they can have rights that are tied to the land in various forms, including a specific right to the land itself. Aboriginal rights, therefore exist on a sort of continuum. Figuring out what these rights are means looking at what practices were in place before Crown exertion of sovereignty.

There has been a sort of modification of the Van der Peet test in R. v. Powley (2003) (http://www.canlii.org/en/ca/scc/doc/2003/2003scc43/2003scc43.html ), which is a Métis rights case. Métis rights cannot possibly be proven before contact with Europeans, since the ethnogenesis of the Métis people came about after contact. So, to prove a right, the Métis have to show that the right was a integral part of their culture before the Crown asserted sovereignty in that area.

There is currently a case awaiting trial called Morin v. the Queen. Only pleadings are available at this time, and a statement of claim was filed in 1994. This case will deal with Métis land claims in Saskatchewan, and based on the Delgamuukw ruling and the modified Van der Peet test from Powley will be approaching title to land as an aboriginal right that would have arisen from having exclusive control over a territory before the Crown asserted it’s own sovereignty. It will be particularly fascination, because aboriginal laws, in this case, Métis laws, will be a very important focus. These laws will be part of the evidence that there was exclusive control, and to what purposes the land was put, and how land ownership was regulated within that particular aboriginal society.

All of these cases have taken aboriginal law into account as part of the proof that aboriginal rights exist. This is a completely different way of dealing with aboriginal rights than was outlined in St. Catherine’s Milling, but one much more consistent with constitutional principles inherited from British imperial law.

Likewise I didn't know to much about native issues in Canada either until just a few years ago. After researching the Blackfoot which I am a quarter I learned a little. I always assumed and maybe ignorantly that the Canadian natives were treated the same way as in the US.
It's not even just the constitutional principles that are different in the US...the Reservations in the US are huge compared to Canada. There are much higher concentrations of aboriginals in the US, on fewer reserves. Here, we are very scattered, with many bands having less than 1000 people living on them. There are so many differences in treatment, history, and law that make it extremely difficult to really do a useful comparison.

Excellent points really. I wonder what made the government in the US react differently? In so many other ways the treatment we received at its hands was worse than what happened to us in Canada, and yet our laws were validated early on in the US, and not here.While I'm far from an expert on the topic, I suspect it had something to do with the more competitive nature of Western migration in the United States combined with the somewhat earlier solidification of colonial governments.

The result, as I see it, was a situation in which a government existed that (from rather early on) tried to establish "rules" for Western expansion, whereas what little I know of earlier Canadian expansion suggests that it was "frontier-like" for a much longer period.

Again, I'm not an expert. If someone (you included) with more knowledge contradicts anything I say, I'm pretty willing to stand down on this one.

I believe that there were also other important factors to take into account. Population density was lower than in southeast Asia and Africa, especially after the ravages of disease.That is an important point. One of the most significant aspects of the legal entity called a "state" in Anglican jurisprudence (and this goes back long before positivism) is that the state is "supreme" within its territory, which implies the ability to patrol/control tracts of land. The combination of a culture that was, by and large, less territorial and more nomadic with a low population density may have suggested to many invaders that what they were seeing was not a culture organized under a sovereign power.

Those that could have best explained our laws to the newcomers were either hiding in the bush, dead, or too busy trying to adapt.I'm sure that doesn't help.

As I think on it, probably the most important factor in all this is the cultural significance of the "New World" for Europeans. Whereas the Doctrine of Conquest had always applied to conquered peoples, by the time they reached the Americas Europeans thought they already knew all the people in the world. They had commerce with most of Africa (excluding the most very southern portions) for hundreds of years, and the same goes for Asia.

When America was discovered (from the European point of view) it was billed early on as a "New World" ripe for the colonizing. Though people were aware that humans already lived there, long before most settlers had contact with them they had taken up a perspective in which they hardly mattered.

Also, we very quickly became a minority, which made it much easier to discount our laws, unlike in other parts of the Empire where the settlers did not tend to outnumber the indigenous populations.Yes, everyone else in the world had already become immune to their nasty, "civilization"-produced diseases. When they met American natives, they wiped them out almost by touching them. More often, they spread disease intentionally.

Except that in Canada specifically, since the repatriation of our Constitution in 1982, and the inclusion of the Charter of Rights and Freedoms, Canadian law is drifting away from positivism and into the realm of constitutionalism.Constitutionalism is a form of government. Positivism is a theory of law. They often go together. United States legal theory is still dominated by positivism, regardless of our having a written constitution. Positivism is just a mode for interpreting the constitution, among other things.

Now, however, that aboriginal rights are entrenched in the Constitution, it has fallen on the Courts to begin to flesh out what those rights are.See, that's what positivists need. "Show us where the law says so." Once you give them a law that says so, they're perfectly happy to flesh out whatever rights you like.

I believe this is why there will be a rediscovery of the Doctrine of Conquest.Maybe. It will depend at least as much on politicians as it does on lawyers. But so long as the jurisprudence is dominated by positivists, I wouldn't count on the lawyers to do it by themselves.

This is why the courts, in my opinion, are going to have to reach back a bit further here. There is a rich body of case law dealing with defining customary laws and rights...various tests to prove certain rights etc within the English tradition that can be drawn upon to define aboriginal rights. This will still satisfy the positivist model.Yes, it will. You're exactly right that what positivists need is a "test." That's literally how they define their tradition. And using those tests they may discover a great deal of rights.

But I don't think the Doctrine of Conquest will come out of it, because there is a rather standard test (for positivists) for figuring out when it applies, and whatever the real culture of your ancestors (which may have included these things in some form), I suspect you're going to have an uphill battle convincing modern jurists that it applies. The test is as follows:

1) Does the culture have a rule of recognition? Is there a way to single out customs that were "law" and differentiate them from customs that were not law?
2) Does the culture have rules of change? Effectively this means, does it have a legislature?
3) Does the culture have rules of adjudication? If a case comes up in which it is not clear whether custom has been violated, how does one decide the case?

From what I understand, your ancestors had rules of adjudication: a chief or other distinguished person could decide someone's case and enforce a rule, and the people would accept his judgment. It's less clear, I think, that there was a rule of recognition... and if it was really a system of "customary" law, then by definition there could be no legislature: if there were, it would be making laws, not customs.

As well, the courts have NOT been claiming that these laws did not merit recognition under this theory. Not since 1982 actually. In fact, that view has been expressly rejected for it would render section 35, the entrenchment of aboriginal rights, essentially void.Right.

But that just goes to show you how positivists think. If they're going to uphold aboriginal law, it's going to be under section 35, a positive rule. It's not going to be under the Doctrine of Conquest.

In relation to aboriginal law, a very different track is being taken, one that is based more on the unwritten, the 'spirit' of the Constitution, rather than on statute etc.Looking for the "spirit" of the Constitution is one way to interpret the Constitution... but it still relies on legal principles that can be found in the Constitution, which for constitutional states acts as the positivists rule of recognition. Laws made in accord with the Constitution are laws; everything else isn't.

As well, there is somewhat of a return to determining what is law in another society based on the perception within that society, rather than through the lens of the English common law. For example...instead of saying, 'this is what land ownership looks like', the courts have been asking (as they did two centuries ago) 'what does land ownership look like to the people in question'.That's... better. And it's also the closest you've come to showing a non-positivist thread in your jurisprudence. Positivism can still find ways to bring this sort of thinking under its rubric, but the sense in which it relies on a deeper conception of human dignity tends to thrust it into other, more principled branches of jurisprudence. If I were you, I'd be hoping that this sort of thinking continues.

This could be better, or worse, it's really up to the particular interpretations, and it is difficult to predict what will happen.Yes, but the principle that an alternative cultural perception must be included in jurisprudential interpretations is a good one. Good principles do not always lead to favorable outcomes, but on the whole I think a legal system based on good principles is superior to one based on bad principles... or, for the positivists, without any principles at all.

Incidentally, Neesika, have you ever read, The Truth about Stories: A Native Narrative, by Thomas King? It's a fantastic book, and I've twice taught it in my classes when I'm trying to explain the epistemological significance of narrative.

I think you would like it.

I'm not big on any local laws that go beyond traffic regulation and farmer's market hooha.

I don't have, as such, a problem with aboriginal peoples having their own legal systems. But I do see some philosophical difficulties.

First, there is the problem of equality under the law. Can it be ensured that both aboriginal and non-aboriginal people are both treated fairly and with equal regard? Can we ensure that one is not set higher than the other? This is not a situation analogous to laws of various states, where a person could simply move to take advantage of better conditions. Could an aboriginal person opt out of the aboriginal law, if he/she felt it was disadvantageous to him/her to stay? Could a non-aboriginal opt in?

Second, there would need to be a simple, clear and swift means of reconciling the two (or more) legal systems in the case of conflict.

While I'm far from an expert on the topic, I suspect it had something to do with the more competitive nature of Western migration in the United States combined with the somewhat earlier solidification of colonial governments.

The result, as I see it, was a situation in which a government existed that (from rather early on) tried to establish "rules" for Western expansion, whereas what little I know of earlier Canadian expansion suggests that it was "frontier-like" for a much longer period.

Again, I'm not an expert. If someone (you included) with more knowledge contradicts anything I say, I'm pretty willing to stand down on this one. Can't speak to the US experience as much, but yes, particularly here in the West, the consolidation and colonisation were more scattershot. There was a scramble to sign the numbered treaties and open up the West for settlement (and head off US expansion), but there were a few roadblocks in the way, in particular, the Metis on the Red River, who had set up their own government and were finally moved to rebellion. Actual settlement was fairly slow. Really effective political control took a while.

Constitutionalism is a form of government. Positivism is a theory of law. They often go together. United States legal theory is still dominated by positivism, regardless of our having a written constitution. Positivism is just a mode for interpreting the constitution, among other things. Sorry, I'm a bit jumbled. I don't have the proper terminology perhaps, but the way that aboriginal law is approached is specifically through constitutional analysis now, as opposed to how it was dealt with before. You're right that this is mostly still done through the lens of positivism. It has been aboriginal law via the constitution that resurrected the concept of 'the honour of the Crown' as a legal principle, etc, which are not necessarily amenable to positivist 'tests'. Many of the concepts coming out of current aboriginal law are equally amorphous.

See, that's what positivists need. "Show us where the law says so." Once you give them a law that says so, they're perfectly happy to flesh out whatever rights you like.

Maybe. It will depend at least as much on politicians as it does on lawyers. But so long as the jurisprudence is dominated by positivists, I wouldn't count on the lawyers to do it by themselves. I wouldn't necessarily want them to. Change, lasting change, is going to be political. The courts are merely a spur.

Looking for the "spirit" of the Constitution is one way to interpret the Constitution... but it still relies on legal principles that can be found in the Constitution, which for constitutional states acts as the positivists rule of recognition. Laws made in accord with the Constitution are laws; everything else isn't. Of course. The law is never changed, or created...the law is simply discovered. Those legal principles, found in the constitution however, are mostly unwritten. All sorts of things are being recognised as being part of that unwritten constitution that simply weren't seen before. Of course, those things were 'always there'.

That's... better. And it's also the closest you've come to showing a non-positivist thread in your jurisprudence. Positivism can still find ways to bring this sort of thinking under its rubric, but the sense in which it relies on a deeper conception of human dignity tends to thrust it into other, more principled branches of jurisprudence. If I were you, I'd be hoping that this sort of thinking continues. The cases have pretty much stated that this is the only way to approach aboriginal law...that 'ordinary' (re, positivist) legal principles simply are not up to the task. Of course, there is nothing guaranteeing that the cases will continue to follow this approach, but yet, I am hoping they do.

Incidentally, Neesika, have you ever read, The Truth about Stories: A Native Narrative, by Thomas King? It's a fantastic book, and I've twice taught it in my classes when I'm trying to explain the epistemological significance of narrative.

I think you would like it.
Haven't read it no, though I've read a fair amount of his fiction, 'Green Grass, Running Water', 'Medicine River' etc. Of course, the fact that he's from Alberta pretty much ensured that I've seen his stuff :D I'll look for it.

Sorry, I thought I made that clear enough, but it's in my longer post. Lex loci refers to customary laws, or the laws already in place when a new 'boss' comes into town. The term 'lex loci' tends to be used rather than 'customary laws' so as to avoid the negative connotation that (unfairly) 'customary' tends to have in regards to law.I thought you knew how this worked. Your skin is not white. Therefore whatever rules are most convenient for white people at the moment are what applies.:rolleyes:

I don't have, as such, a problem with aboriginal peoples having their own legal systems. But I do see some philosophical difficulties.

First, there is the problem of equality under the law. Can it be ensured that both aboriginal and non-aboriginal people are both treated fairly and with equal regard? Can we ensure that one is not set higher than the other? This is not a situation analogous to laws of various states, where a person could simply move to take advantage of better conditions. Could an aboriginal person opt out of the aboriginal law, if he/she felt it was disadvantageous to him/her to stay? Could a non-aboriginal opt in?

Second, there would need to be a simple, clear and swift means of reconciling the two (or more) legal systems in the case of conflict.


First, I'd like to quote the Van der Peet case, where the Supreme Court explained with aboriginal people received recognition in s.35(1) of the Constitution Act, 1982. It was:

because of one simple fact: when the Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional status. R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 30.

I state that first, because many people talk about us as though we are just another minority in Canada, and should be treated exactly the same as anyone else. The fact is, doing so is manifestly unjust. Equality can be unjust. Equity can not, and equity is what we seek.

Canada is never going to be a united country, completely equal in all regards. There are always going to be power struggles between the different political regions. Federalism simply means that we will do what it takes to ensure that despite these competing regions, we will somehow hold ourselves together, trying to ensure that no one region, neither the political division of federal, provincial, or territorial, shall ever completely outweigh the others.

Aboriginal government is going to have to fit into that rubric. We will never gain full sovereignty, but rather a more equal place within this federation. Just as the provinces have certain powers the federal government can not override, so shall we. And just as the provinces have limits on their powers, so shall we.

You already can run from province to province and take advantage of the differences in certain laws, within reason of course. Federal laws are inescapable in this way, but provincial laws are not (in the main, excluding the obvious, of trying to escape justice by moving to another province).

Aboriginal law will be applicable within aboriginal territories. Some laws will be specific to aboriginal people alone, and some will be of more general application. So, an aboriginal person living outside that territory, will not have those general laws apply to him or her, but the more specific ones may continue to apply (such as voting rights, etc). Non-aboriginals living within aboriginal territory will have those general laws apply, but perhaps not the specific ones.

As for reconciling the laws...there is an entire body of law dealing with conflicts between jurisdictions. No need to reinvent the wheel. It won't be any more complicated than determining the jurisdiction between a plaintiff in Austria, and a defendant in Canada, etc. Not to say that can't BE difficult...but considering we manage to surmount said difficulties on a regular basis, there is really no need for this to even be a consideration when it comes to allowing aboriginal jurisdiction to exist.

First, I'd like to quote the Van der Peet case, where the Supreme Court explained with aboriginal people received recognition in s.35(1) of the Constitution Act, 1982. It was:



I state that first, because many people talk about us as though we are just another minority in Canada, and should be treated exactly the same as anyone else. The fact is, doing so is manifestly unjust. Equality can be unjust. Equity can not, and equity is what we seek.

Canada is never going to be a united country, completely equal in all regards. There are always going to be power struggles between the different political regions. Federalism simply means that we will do what it takes to ensure that despite these competing regions, we will somehow hold ourselves together, trying to ensure that no one region, neither the political division of federal, provincial, or territorial, shall ever completely outweigh the others.

Aboriginal government is going to have to fit into that rubric. We will never gain full sovereignty, but rather a more equal place within this federation. Just as the provinces have certain powers the federal government can not override, so shall we. And just as the provinces have limits on their powers, so shall we.

You already can run from province to province and take advantage of the differences in certain laws, within reason of course. Federal laws are inescapable in this way, but provincial laws are not (in the main, excluding the obvious, of trying to escape justice by moving to another province).

Aboriginal law will be applicable within aboriginal territories. Some laws will be specific to aboriginal people alone, and some will be of more general application. So, an aboriginal person living outside that territory, will not have those general laws apply to him or her, but the more specific ones may continue to apply (such as voting rights, etc). Non-aboriginals living within aboriginal territory will have those general laws apply, but perhaps not the specific ones.

As for reconciling the laws...there is an entire body of law dealing with conflicts between jurisdictions. No need to reinvent the wheel. It won't be any more complicated than determining the jurisdiction between a plaintiff in Austria, and a defendant in Canada, etc. Not to say that can't BE difficult...but considering we manage to surmount said difficulties on a regular basis, there is really no need for this to even be a consideration when it comes to allowing aboriginal jurisdiction to exist.

Well said. One of the US Supreme Court Chief Justices said in the 19th century, "Where Justice and other things clash, it behooves us always to err on the side of the just." Darned if I can remember exactly who said that, but provided such a doctrine is followed in this case, call me a supporter.