Positioning Indigenous Law in the Legally Pluralistic State of Canada
| Pages | 30-44 |
| Date | 01 April 2021 |
| Published date | 01 April 2021 |
| Author | Frankie Young |
| Subject Matter | Derecho Civil |
Positioning Indigenous Law in the Legally Pluralistic State of Canada30
Positioning Indigenous Law in the Legally
Pluralistic State of Canada
F Y*1
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The Beaver v Hill decision is a key legal decision in Canada that deals with the
application of private international law to resolving a family law dispute involving
Indigenous litigants. Chappel J, for the trial court, found that it was appropriate
to apply private international law principles to resolve a private law matter where
Indigenous litigants are concerned. On the contrary, Lauwers J, for the Court of
Appeal, found that the section 35(1) claim raised by the respondent was the best
means to resolve the matter. Without supplying a well reasoned analysis, Lauwers
J found that the trial court erred in applying private international law principles
on the grounds that Indigenous law and Aboriginal law are not considered foreign
law. Lauwers J is correct that Aboriginal law is not foreign law. Indeed, these
common law principles have evolved over time and are meant to regulate dealings
between the state, third parties, in some cases, and Indigenous peoples. On the
contrary, Indigenous law is wholly distinguished from Aboriginal law. Indigenous
legal principles have existed since time immemorial and regulate the relationships
within Indigenous communities. While all legal traditions are derived from the
cultural norms within a community of citizens, for Indigenous communities these
cultural norms have evolved through continuous interpretation by elders and law-
keepers. These legal traditions are foreign to the common law just as the civil law
is foreign to the common law. I argue that Lauwers J erred in finding that private
international law principles should not be applied to resolve private law disputes
that involve Indigenous litigants because he failed to recognize that, in keeping
* Assistant Professor at Western Law School, Western University, Canada. Thank you to the three
anonymous reviewers, and Professors Ghislain Otis, Dwight Newman and John Borrows, whose
helpful comments assisted in strengthening this article. Any errors remain my own. frankie.
young@uwo.ca.
Cambridge Law Review (2021) Vol VI, Issue i, 30–44
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