Legal Pluralism and the Legislative System in Canada

In order to help us better understand the interactions between Indigenous legal cultures and the state normative system in Canada, we must understand the main concepts of the pluralist study of law. There are various ways in which Indigenous customs and legal traditions are taken into account by legislative institutions in Canada. In particular, the Act Respecting First Nations, Inuit and Métis Children, Youth and Families adopted by the Parliament of Canada in 2019, which incorporates elements of First Nations Legal culture into the federal legislative corpus.

Legal pluralism doesn’t necessarily require interactions between systems; each system independently applies its laws. Two methods of articulating state and non-state legal systems are identified: reception and withdrawal.

1. Reception: Involves incorporating external elements of an indigenous legal system into the state legal order. The received elements become part of state law, resulting in a hybrid legal system. The state regulates this process, imposing conditions and shaping the received norms.
2. Withdrawal: Involves the state refraining from incorporating indigenous legal norms. Instead, it leaves the entire matter to be handled by the indigenous legal system, allowing it autonomy. Withdrawal is less common, as it requires state humility.

In the Canadian context, the preferred method has been reception. This recent federal legislation acknowledges the inherent right to self-government for Indigenous peoples. However, the reception approach is detailed and constraining, limiting the autonomy of Indigenous legal systems.

There is also the hybridization of legal systems, particularly the acculturation of indigenous law, focusing on legislative processes. The example of a recent Canadian law related to children, youth, and families of Indigenous peoples is cited. This law affirms Indigenous autonomy but within a framework defined by federal authorities, thereby limiting Indigenous legislative freedom.

We also have a fourth scenario: legal regimes negotiated through modern treaties. These treaties establish autonomous Indigenous governments protected by the constitution, addressing family and child-related matters. The discussed federal law doesn’t apply to Indigenous communities with legislative powers under modern treaties regarding child services.

In summary, we explore the dynamics of legal pluralism in the Canadian context, highlighting the challenges and constraints faced by Indigenous legal systems in their interactions with the state legal order.