Episode 14: Reviving Indigenous law as a source of Canadian law

Guy: Hi, I'm Yves Faguy. In this episode of Modern Law we discuss the revitalisations of Indigenous law in Canada.


Announcer: You're listening to Modern Law by the Canadian Bar Association's National Magazine.

Guy: I'm really thrilled about introducing my next guest, the charming storyteller, and legal scholar Tuma Young. Now, if anything this show is about the law's ability to keep pace with change. And this conversation is an attempt to better understand what it means to revitalise Indigenous law as a source of law in the Canadian legal framework on par with common and civil legal traditions.

And it's also about how we should be thinking of that conceptually. Because the last decade has been a fascinating time in this area. Particularly in the wake of the Truth and Reconciliation Commission's Call to Action to promote Indigenous law which the Government of Canada has committed to do.

And there have been some big steps taken in that direction with the implementation first in BC, and then at the Federal level in 2021 of the United Nations Declaration on the Rights of Indigenous Peoples.

These developments are just the latest chapters in a larger effort to reconcile Aboriginal and Crown constitutional and legal orders.

Now, a bit about my guest. Tuma Young is a Kings Council. He grew up in the traditions of the Eskasoni First Nation. He's a researcher and an assistant professor in Indigenous studies and political science at Cape Breton University. He also served as the Nova Scotia Barrister’s Society’s first Indigenous president in 2021-2022. And his primary research area is the analysis of L’nu worldview – L’nu is the term the Mi'kmaq use to describe themselves. And so he focuses on traditional concepts of governance, and how they can be used in contemporary legal institutions. And I also like to think of them as an archeologist of sorts. Of Indigenous legal traditions.

Tuma Young welcome to the show.

Tuma: [Mi'kmaq language [00:02:00] Thank you very much for having me on the show.

Guy: How do you come into this conversation, Tuma Young? And how did you get interested in this issue of bringing back Indigenous legal traditions into our contemporary law?

Tuma: Well I guess you can go back to my law school days in a way.

When I was in law school, one of the reasons I selected the law school that I went to was because that had a lot of Aboriginal Law courses, and I was very much interested. And my passion is there because that's who I am as an Indigenous person right?

And so while I was there I took as many Aboriginal Law courses that I did. And I thought I was learning about Indigenous Law. But it really turned out that I was only learning about Canadian Law as it is applied to Indigenous people.

It's not until I went down to Arizona, and I came back to my own community that I became very aware of that distinction. One of the things that happened is when I was in Arizona I was a guardian and incapacitated adults.

So one of the first things I did, I asked for, and here we are, we're in a tribal court on the reserve. There is an Indigenous judge. There's an Indigenous lawyer representing the mother, Indigenous lawyer representing the father. We have Indigenous clerks in the court house. There’s Indigenous Sheriffs you know, in the court house. And it's a beautiful courthouse on the reserve.

And I asked for their Indigenous laws regarding child welfare, child custody. And they gave me one, and it looked strangely familiar. And I'm like you know, what is this?

And when I went to the State of Arizona they had replaced the words State of Arizona in their State of Arizona Child Welfare Court. And replaced it with the tribe's name.

And I was like really there's nothing Indigenous about this. They just you know scratched out the name and put it in here. And that got me thinking about you know, when we're looking at replicating the institutions of governance, or in law, or in our communities. Often we end up replicating the very same institutions that all these reports, and inquiries, and commissions have all talked about.

And they basically said that they don't work. In other words we're really putting Brown people in a Western institution and not using our laws.

And then when I came back home I was at a powwow in my own home community here. And I was talking, we're the last of the [Indigenous Language [00:04:47] There's not many of us left you know? We're trying to teach people about the tradition of [Indigenous Language [00:04:52] dance.

But if you go to a powwow in many of our communities here, they're very pan-Indigenous. They look very much like you know, if you were in Alberta, Saskatchewan, or Ontario you know? Have these familiar dances, familiar chants, familiar drums, familiar stories etcetera.

What makes L'nus different is that we have a different style of traditional dance. Anyways, my cousin wanted to dance at the powwow. And I told her that I think you have to offer some tobacco to the drummers. I said I think that's the protocol. I said I wasn't sure, but I said.

So she took some tobacco and she went to the drummers and she offered them tobacco and asked them to sing the [Indigenous Language [00:05:34] dance. Or [Indigenous Language [00:05:36] chant. And she came back and she was very puzzled. And she was a little off. And I said what happened? She said "Well, I gave them the tobacco like you said. I asked them to sing the [Indigenous Language [00:05:47]. But they gave me back the tobacco." And In said "Well what did they say?" And she said that I could not dance around the drum because I wasn't wearing a skirt. And that you know women have to wear skirts when they're dancing around the drum. And I'm like, says who? Well that's what they said.

And so I went over to the drummers and I asked them, I said "What's this I hear?" And they said "Yes, that's our law." And I'm like I've never heard of this law. And they said where did they come from? And they said our elders? And I said which one? And they couldn't tell me.

Now looked at each other. They had heard it somewhere down the line somewhere. And I'm like so you guys just pulled this out of thin air? You know I said did you know that Mi'kmaq people, L'nu people, we're woodlands people. We’re not plains you know people you know? We're not on the plains.

If you're on the plain a skirt might be very practical. But here in the woods, if they catch on the twigs, everything. Mi'kmaq women traditional regalia would be wearing a smock over leggings. You know, and skirts are very impractical in the woods, and in the swamps here. That's where we're at.

But that got me thinking, where are people pulling Indigenous law? We often said that we have Indigenous law. But what is it? Where is it located? Etcetera, so that got me thinking about it, and I had to go back and I did some graduate studies in legal theory.

And so all the advisors, my advisors and professors were you know, recommending me to look at this legal theory, this legal theory and see if that's a place where I can locate, and put in Indigenous legal orders.

And I'm like hm. And every single one of them I thought well they were a good fit. I had to study natural law, economics and the law, feminism and the law, and legal pluralism, and a few other legal theories. And none of them seemed to fit you know? And legal pluralism came close, but the history of legal pluralism is that it's rooted in colonization.

When you know, when Western law was applied to a colonial country. Like for example some places in Africa. And they couldn’t' get rid of some of the Indigenous legal orders.

So they allowed them to exist, but the dominant Western laws were the dominant one. And if they come into conflict of course the Western law would – but the local laws were – or the ruling governors would just ignore them.

And thus the existence of legal pluralism. Where two or more legal systems come into place.

Guy: It's interesting because obviously you know, legal pluralism in Canada has maybe different meanings. And it's interesting that you raise this colonial connection to it. Because I think sometimes we think in Canada of legal pluralism as coming to us as something you know, it comes to us pretty naturally given the coexistence of common law with Quebec's civil law, and its sort of unique place in Confederation.

So what is legal pluralism? And is there a relationship between legal pluralism and reconciliation? Or are you telling us that this is just not the right term that we should be using?

Tuma: I think it really is not the right term. Because when we understand legal pluralism, even in the clean context of the common law in the Quebec civil code. We're still assuming that it's a hierarchy of laws. And that Indigenous legal orders would be on the bottom of it. Whereas you know, the intent is to have Indigenous legal orders side by side. And even in those situations where there's an intersectionality. You can create this space there where a hybrid Indigenous legal order can exist.

You know, whereas you know for example if you were to take the common law and in those situations where Indigenous legal orders were you know, intersected. You create a space where both legal systems are in place, but neither dominates.

And to me that would be the best type of legal pluralism if you want to call it that. And give full meaning to the concept of legal pluralism. Well often what happens is when we're thinking about legal pluralism and the theory of it is that we have two or more laws. One of them will always be the dominant one. And you know over Indigenous legal orders.

And that's not the type of legal pluralism that's really what is called for in all of these enquiries, and in the TRC, and reconciliation.

And to give you a good example, Canada has always had a third order of constitutional legal orders, and that's been Indigenous by the get-go.

For example the Canadian Constitution is made out of you know, conventions, and treaties etcetera. But one of the treaties that L'nus have adopted, but may not be considered as a treaty from the Canadian side is the Royal Proclamation.

The Royal Proclamation is a proclamation from the King, or from the Crown you know back in 1763. But shortly after it was proclaimed, and even here in Nova Scotia before that you know, we had Belcher's proclamation which is the forerunner for the Royal Proclamation.

Afterwards, the Royal Proclamation was brought to the big gathering in Niagara. Where over 200 tribes gathered and they listened to the Royal Proclamation as it was presented. Including the Mi'kmaq, of the L'nu tribe.

And we accepted it as a treaty. So from all Indigenous nations in Canada and the United States the Royal Proclamation is actually treaty. It's not just a proclamation from the Crown. That Royal Proclamation is part of the Canadian Constitutional Order.

Treaties, the Peace and Friendship Treaties, Robinson Hudson Treaties, Huron Treaties are part of the Canadian Constitutional Order.

The number treaties out West are part of the Canadian Constitutional Order. So do we look to these Indigenous legal instruments as part of our Canadian Constitution? Of course we do. But when we put it into our laws we seem to forget that these Indigenous legal orders constitute a third hit of authority.

So when we're looking at for example in the past criminal or family law issues, or disputes would be adjudicated in the courts. John [Borston [00:12:28] has written about how Indigenous laws have been adopted, and accepted into the Canadian legal order as a third order. Third source, and one of the most famous cases is the Wendigo case that he had out in northern Ontario. And then the other one which was a very interesting one, the Woolworth case coming out of the State of Quebec and British Columbia, and Ontario.

Both cases Indigenous laws regarding the punishment for murder in the Wendigo case, and what constitutes a marriage in the Anishinaabe, Cree, Hinterland during the Hudson's Bay Company, and how does this square off with the Quebec Civil Code where the family was at odds with the marriage of the Voyageurs there. What they used to call country marriages. They weren't considered legal, but from the Indigenous legal order they were very much legal.

So Canada from time to time has looked towards Indigenous laws as a way to adjudicate disputes. Whether it was in the criminal context, or in the civil context.

Now again, they don't come up often, but there was some more recent cases out of British Columbia, the ICBC case. And I forget the name of that, but there was a death in the family. The grandchild who was traditionally raised by the grandparents, and they were given the insurance compensation payout because they said that under Indigenous law they were the natural parents even though they were the grandparents. There was no traditional – it was a traditional adoption.

Similar situations are coming out of the Northwest Territories and Equality. So the Canadian court system has brought in Indigenous law when it was perfectly acceptable to do so.

So that's my idea of legal pluralism. Is that we need to bring more and more Indigenous legal orders and laws to the adjudicators, or the decision makers in the court systems. So that they have a third source of legal orders in which to try and resolve disputes.

Guy: So let me just try and unpack that a little bit. Because – and I guess for lack of a better term, and you know and so I hesitate now to use this term of legal pluralism given all the reasons and the colonial history behind it. But I suppose in the context of revitalising Indigenous legal traditions, how do we think about this? Are we talking about separate legal systems? Are we talking about bringing traditions together?

How do we weave all these different legal traditions? And there are many different Indigenous legal traditions, into the fabric of our larger corpus of law so to speak?

Tuma: Well that's exactly the term that's really relevant, and it's been coming up over and over again in the work that we're doing. Is instead of using weave, you can use braid. You know you braid, and you braid it into the system of you know, the laws and the systems that we have already.

So you take one braid which is you know probably international legal systems. And then two you would know the Canadian legal systems. And three, Indigenous legal orders. And you braid them, and by braiding them you're making a very strong rope, or a very strong braid in which all three orders are strengthened by each other, you know? Rather than each of them standing alone.

And in those areas, in those spaces where you don't really know which is the one? You can use both, or all three and come up with the space.

It's like thinking about it as a middle ground approach. For example when the Settlers first started to arrive. When the French arrived here in our communities. And then the English anyway, there was a space there where French law did not apply to some disputes.

It applied within their own context, within their own communities, within their own disputes. But – and also L'nu law would apply in their own communities, in their own context, and in their own disputes.

But disputes between the two, or regulating trade, or anyway. You come to kind of a middle ground where both agree to use some of their legal traditions and come up with perhaps a temporary one, or perhaps a bit more longer lasting.

But in this middle ground both brought their legal systems, or parts of their legal systems. And created the hybrid one that worked in their relationships. Neither dominated.

And if you look at the treaties, and especially the Peace and Friendship Treaties out here in the East here. Basically people seem to think that we promised not to kill each other. The L'nu promised not to kill the English, and the English promised not to kill us, and all the wars and disputes will be settled etcetera.

However those treaties are just as much trade, and economic treaties. Because both parties wanted a relationship with each other to continue. And it is this relationship that you require dispute resolution mechanisms.

So in bringing their own parts of their Indigenous legal orders, and also the Western legal orders, or the English legal orders. And use these as a hybrid approach to solve their disputes.

Guy: So again you know, and being someone who attended law school in a civil law jurisdiction in Quebec, I suppose the analogy I can make is to the hybridisation of civil law in Quebec.

And you know I mean there are proud defenders of the civil legal tradition here, but there has been some hybridisation between civil and common law, and we've even seen common law, legal tradition here import civil law concepts.

Those however are I mean we're talking about two legal traditions that are rooted in European law. And perhaps have more similarities than differences. Certainly when compared to Indigenous legal traditions, and perhaps I'm wrong about that. But how feasible is this in concrete terms?

Tuma: I think you're going to find that a lot of Indigenous legal principles are more aligned with the Civil Code than they are with the common law.

Guy: Interesting, why? How so?

Tuma: Because they tend to rely on principles you know to resolve disputes, or use these principles to see what could happen, you know?

And part of the interpretation is to bring these principles into the dispute arena. You know, you'll often hear from many Indigenous communities that their courts, they want them to utilize the seven Grandfather Teachings.

These are the overwhelming, overarching legal orders. The Seven Principles of the Grandfather. Law of respect, honesty, truth, etcetera type of thing. So these are the principles and you have to constantly keep these in mind.

So when you look at the dispute you interpret the dispute, or you analyse the dispute using these principles in mind. And if I'm not mistaken that's similar to what you know, I know, kind of you know bringing it down to a small bit.

But in some ways my understanding of the Quebec Civil Code is you have these principles that you know you use to interpret how things are to be done.

Guy: Would you say it's a more deductive method of reasoning like Civil Law or?

Tuma: Yes, I think so and it would be much more – and also it results in much more conversational, or a dialectic approach to resolving a dispute.

And that leads to much more consensus building than it is to arbitrarily you know, apply something there you know? So that if an agreement is made, it is reached through a consensus or a dialogue. And the parties, and everyone involved has a much more invested interest in agreeing and abiding by this agreement you know?

Rather than have something imposed from the outside.

Guy: Having said that though, we do, I mean and correct me if I'm wrong, but Indigenous and non-Indigenous legal orders have different conceptions of governance do they not?

Tuma: Well yes, they do. But there is – on the larger scale there is always a leadership. And who's responsible for enacting, or who's responsible for what obligations?

You know, and many of these obligations and responsibilities are you know very much the same. You have Natural Resources, you know [Indigenous Language [00:21:47] reviewing property, assigning areas, hunting etcetera that type of thing. SO many of the same responsibilities of government, those same powers and authorities have been wielded by Indigenous leaders for many, many years.

And they've been used. One of the fundamental differences though has been identified by Indigenous academics is that the source of the law in particular. Whether it's private law, or public law is seen as opposite of what Canada or the Western society is.

In Canada public law is the law of the State. Like I'll give you an example, the Canadian Criminal Code you know? That’s the Law of the State. Whereas private law is you know, disputes between two individuals privately. Law suits or you know the Civil Common Code you know the Civil Law.

So that's how you would resolve your disputes. You know the government doesn't tend to interfere with it. Except for whatever legislation instruments they have. But you're basically suing each other you know?

In the L’nu community it's kind of reversed. Public law rests with the family, and private law rests with the governance institutions. And I'm going to use the criminal behaviours.

You know and there is a shared liability, and a shared conviction here with family members. So in the family, the criminal modification behaviours are the responsibilities for that rests with the family. In particular the immediate family.

So family, if one of their members does wrong, the whole family is seen to have done wrong. And so it is in the interest of the family to make sure that their members stay on the right track, and they will correct any behaviour if they see anybody veering off a little bit. And there are various mechanisms which the family uses to deal with these things.

Whereas in the public sphere we used basically you know a force, or violence to ensure compliance, or to take away somebody's freedom in a way. That's the ultimate force that's used right?

And that's – I'm not saying judgment on either one, whichever is better or not. They're just different you know? For example because Canada can be seen as a federation of different communities, and immigrant communities. Regardless whether they're English, or French, or from the you know recent immigrants, or something.

It's seen to be an unnatural community. These people are not you know type of thing. So they need external forces to modify their behaviours, or keep their behaviours and create a regulatory scheme.

Whereas if it's in a natural community like a small band of L'nus, and you have the family that will keep the rules, they will keep the regulations. It's in their interest to ensure that their members follow the set of standards that they've enacted, like on the morality and whatever it can be right?

So it's a natural community versus you know, and as opposed to an unnatural community in a way right?

Guy: What would this mean? Because that's an interesting – and that's not – that’s a non-negligible difference between Indigenous legal traditions and the ones of common law, or even civil law.

So how do we – how must we think or rethink the application of I guess public law or state law?

Tuma: Well that's the most difficult work. And I often tell people, you also have to understand the impact of colonisation, and upon Indigenous communities.

You know, if you look back there's a lot that has happened. You know and some recent things you know, the TRC identified Indian Residential Schools, or Indian Day Schools, you have the 60s Scoop. The current issue is you know the Children State Societies.

But even before that there were legislative impacts you know? Like not being able to hire lawyers, the removal of status from many different folks.

Even Confederation took away the power. And even before that the impacts, one of the biggest impacts was the virgin disease epidemics. You know the arrival of many diseases on our shores.

So all of these have gone on, and it's been one after another. So you can't get away from not looking at these impacts of colonialism.

And often I tell people, here's a good example. In 1610 Grand Chief Membertou was baptized here in Nova Scotia at Port Royal, and the French community there.

So in that Baptism he was reported to be 110 years old. And one of his quotes was that when he was a young child he had met Jacques Cartier, or Jean [Chabat [00:27:17] I'm not exactly sure which one, but maybe both in his travels. And that during that time there was more L'nus than the hair on his head.

We're talking about the French first arrived in Nova Scotia, or Nouvelle-Ecosse around 1497, and let's say 1500 for easy sake right?

And so between 1500 and 1610 that's about a period of 110 years. And already Grand Chief Membertou had saw a decline in the numbers of Indigenous people here in Atlantic Canada.

Between 1610 and the start of the treaty-making process with the British was about 1693, 1725. It depends which treaties you consider etcetera type of thing.

The estimates was that there was about 30,000 to 50,000 L'nus here in Atlantic Canada.

Still a very strong military force to be reckoned with, but not the estimate that was in about 1400. About 300,000 to 500,000 L'nus.

So in the 200 years there's been a substantial decrease. And by the time the treaty-making period was ended by 1800 and the treaty denial period came into place. Which is the 1800s, until Confederation, and even beyond.

You know, estimates in 1850 here in Nova Scotia was there was only 2,500 Indigenous people left here, L'nus left here. We were almost wiped out.

So I tell people in our search for Indigenous laws and Indigenous legal orders, Indigenous knowledge. I feel like we're those archeologists that go around digging up pottery shards. And we find a couple pieces of pottery, and we're able to assemble it, and then fill in the rest to show what the pot could have looked like, or did look like, you know?

We'll never find all the pieces. Because between 1850, and let's say up to 2000 or you know up until the 1985 or 2000 the focus was on surviving. And just surviving and not becoming extinct.

So a lot of Indigenous knowledge on Indigenous law, Indigenous legal orders has been lost to time. And we are trying to piece – we're just finding shards, and I'm imagining what that pot looked like. I'm imagining what Indigenous Legal Orders looks like based on what I'm able to find.

And I'm finding a lot of shards, a lot of examples. And I'm finding them in those locations where I eventually had to look. I know I couldn't find them in you know documents like the Arizona State Code or...

Guy: So where do you find them?

Tuma: I find them in the language, songs, ceremonies, rituals, chants, dances, the world view of L'nu people. And that's where I find them.

Guy: And this sounds completely naive as a question, but like how much of it do you think that you can piece together? And I guess another way of putting it is, is there a job ahead that is filling in the blanks?

Tuma: Oh God sakes yes. There'll be lots of jobs headed for that. Here's an example of how I've been able to do it.

I grew up with my cousin oh God love him Joey, he's now passed away. He used to sing songs to us on his guitar, and bring out his guitar at night anyways, by the campfire and sing a few songs.

And he would be singing this song you know [Indigenous Language [00:31:07] And so I always thought of him as like when Joey had a few beers in him he would sing these songs you know right? Kind of a fun thing.

It's not until I started doing research and I went into the archives here. And I pulled out the Captain Ben Christmas who was a Membertou Chief in the 1940s, 1950s and even earlier.

He was recorded on wax cylinders on the Nova Scotia Archives. And he sang this song called the Marriage Song. And people said oh yeah, well look at this. We have a marriage song.

And when I listened to it as a fluent L’nu speaker, and I can understand him in this. And I understood and I said well that's the Marriage Song. And that part of it was the Marriage Divorce Song.

Under the Canadian Constitution the authority to solemnize a marriage was with the provinces. [Unintelligible [00:32:09] The authority to dissolve a marriage is with the Federal Government, but L'nu people, we had that authority to do both you know?

And so it's what was contained in this song, what the rituals are, what people had to do in order to have a marriage be recognized by the community and in order to have a divorce recognized by the community, and become legal.

So L'nu people can have that authority, and it was in one song, and that's how it was passed on.

But it's not just a song, it's in combination with a feast on both sides and also in selection, on scent, and all the other rituals that are required, and steps you know?

And I think you still require these steps in the solemnization of a marriage anyways, and you still require steps in order to get to the divorce right?

So there are just different types of steps. Same thing with this one. So now I'm a Justice of the Peace here in Nova Scotia and I do weddings.

And so when I do weddings in the communities, and what I do is that the Solemnization of Marriage Act in Nova Scotia requires you know there are certain phrases to be said, promises to be made, oaths to be taken etcetera type of thing right?

And at the end I as the officiant say "by the Authority vested in me by the Marriage Act of Nova Scotia I now pronounce you spouses."

Well sometimes I don't say that. Sometimes I say "by the Authority vested in me under L’nu [Indigenous Language [00:33:48] Mi’kmaq law I now pronounce you spouses."

Or I'll say – it depends on the context. I'll say "by the Authority vested in me under L'nu [Indigenous Language [00:33:58] and under the Marriage Act of Nova Scotia I now pronounce you spouses."

And that's a way for me to bring and braid those – the Canadian Law with L'nu [Indigenous Language [00:34:10] law, which is Indigenous Legal Orders, and to accomplish the same thing.

Guy: So I find that fascinating and precisely on that topic of braiding you know I mean so I think when we have these discussions about reviving, revitalising Indigenous legal traditions, or if you want to have discussions about again a term that applies maybe poorly here, but legal pluralism there are questions about you know, who's included in the Indigenous legal order? Who the Indigenous Law applies to?

So perhaps with the cases that you're describing you know you can decide when to use what. But there have got to be areas where it's more complex than that? And I'm just wondering if you could sort of give me your impressions on that?

Tuma: Yes, there are many, many areas. There's going to be some you know, complexities and difficulties. And we just have to walk through them and stumble through.

It's like you know, when we're in those spaces that's the creation of a new shard that's going to be added to the pot.

And one of the more difficult ones is that some of these Indigenous Legal Orders and principles, people will say well they're over 1,000 years ago. How can it apply to today's society etcetera type of thing.

You know, so that's one of the challenges. How do you bring these Indigenous Legal Orders, these other ones and bring them into a contemporary setting? Like I can talk about how I do the solemnization of the marriage etcetera you know, and even the divorce in that way. But how do I deal with child support, division of assets, you know? What about homes on matrimonial property on reserves etcetera.

All of these are contemporary issues that needs to be resolved. And people say well these are old, very old laws. That's not going to be able to do it.

Well you know what? Laws are very fluid. They're flexible. They change you know? Canada revises its statutes every couple of years, every 10 years. It is very much possible.

And you know part of the whole application of law to our communities is that it has to be contemporary. There's no way around it right? And that's really what builds the strength in the braid. Is when communities and folks see themselves, and are reflected in the laws. And they accept them. Then the laws become much stronger in their applications you know?

And they're accepted. It's when they're not accepted that a possible institution can crumble away. You know and that's one of the ways and thoughts that I think ab out currently in our court systems.

Many people, many L'nu people, many Indigenous people don't see themselves reflected there. Not in who is sitting there, who is participating there. But who is directly impacted by it. So you see you know, over-representation you know?

And the judges, and the courts are – they don't seem to be able to respond ethically. And so they're saying there's a large mistrust between the Indigenous communities and the Justice System.

And when you have a whole section of the community, or of a country, or Canada not having any trust in a governance institution that is very, very worrisome you know?

And that's part of our job. To see what we need to do to reconcile, and bring folks back into a new relationship with the Indigenous Legal Orders, and with the Canadian Legal Orders. And with you know the other international legal orders.

And that's where we're looking at reconciliation. We need to break them all. So that when an L'nu person from [Wagmatcook [00:38:25] First Nation is appearing in front of a judge in court. That they can see their laws reflected or being used by the judge. Regardless if the judge is Indigenous or not. And see it applied and accepted you know?

And that's part of the foundational roles of our society I think. You know these are the institutions of governance that rely on our community's acceptance.

Guy: So there is an imperative to revitalise Indigenous laws that predate Confederation, and that were ignored for too long. At the same time there are you know, we live in 2022 at a time when you know we do live in a pretty complex legal society. Where you know we are trying to braid also international laws as you explained earlier, and national law, and then provincial law, and then different Indigenous legal orders.

Is there worry that we create patchworks and layers that make it too difficult for citizenry in general to grasp? At a time where you know we're trying to improve access to justice and all these things?

And I understand that there is an access to justice imperative in ensuring that people recognize themselves in the legal system. But you know, where are the challenges there?

Tuma: Well the patchwork is already there. And if you just look towards the south for our neighbours, and we can say well we don't want to make the same mistakes they did in you know looking at tribal sovereignty, and jurisdictional issues.

For example if a crime is committed on a part of like say the Cherokee Reserve in Oklahoma the first questions always asked is then who has jurisdiction here? Not who do we call? The police, or the Ambulance? No, the first question is do the tribal laws have jurisdiction? Do the state laws have jurisdiction? Do the federal laws have jurisdiction?

And even within the reserve you can you know, go from one mile to another jurisdiction in the next mile in the same community.

You know so there is a patchwork of systems there. Which does not really work in a way. And in Canada we are also having a patchwork of systems here. Sometimes it's the Canadian Federal Jurisdiction. Sometimes it's the Provincial Jurisdiction. And sometimes there's just indigenous communities exercising their own inherent jurisdiction. And over a particular dispute, resolution process without any formalities.

And so when you have that kind of systems, it does lead to a patchwork. For example there was a mention of previously people will ask, well you can't have two systems of justice.

Well, we already do. We have multiple systems of justice you know? Just the example of the Canadian common law, the Quebec Civil Code is just like you know and people can say that's two systems right?

But even still we have you know the criminal system, the civil system, and then we also have an administrative system, and adjudicative tribunals. These have their own rules, laws, regulations etcetera that you know, that I would suspect govern and impact upon most Canadians' life in a much more different way. In a much more larger way than you know the Supreme Court of Canada in a way right?

I think about the immigration. The Refugee and Immigration Board, the tribunals, the Canadian Human Rights tribunal, or the various provincial Human Rights Tribunals. Even universities you know have their own little administrative tribunals for student misbehaviour, misconduct right?

And a lot of them struggle with this patchwork of systems. Now when we don't have, or there's a space there that's not covered then the possibility of you know abuse may come up in places.

For example many housing and rental tenancies, we often hear about the tenancy boards in Ontario you know, they're struggling etcetera, and the delay in bringing forth disputes before the tenancy boards and etcetera type of thing.

It has an impact on both landlords and both on tenants. The same situations seen housing as a major issue all across Canada.

On reserves in First Nations communities, provincial tenancy boards do not apply. Because of the Indian Act you know? I believe it's Section 88 I think you know, that says that provincial laws of a general application will apply. Except for the extent that they touch upon the Indian, or Indianness of a thing.

Well when we're talking about a landlord, tenant relationship is based on the land, is based on reserve land well you can't get more Indigenous than that. Or L.nu.

So provincial laws to protect both landlord and tenants do not necessarily apply in First Nations communities. But there is no Federal equivalent law. So there’s a legislative vacuum here, and so you have the potential for abuse to happen. Nobody's rights are protected here. Disputes aren't mediated properly you know?

And that leads to a patchwork of solutions you know, across First Nations communities. Like what may work in the Nisga'a up in British Columbia may be entirely different than what's here you know in Nova Scotia. But still the legislative vacuum is there.

And then when you have that legislative vacuum, Indigenous people will bring their own laws into it and say this dispute.

Now that pattern is repeated in many different arenas. For example the current one is the cannabis regime. And cigarettes you know cigarette distribution, sale etcetera type of thing, right? And these are – where there's a provincial law application, but in a Federal jurisdiction. Yo9u've got a patchwork, and you've got problems. And so this is where we can probably braid Indigenous legal orders to have jurisdiction in these areas.

Guy: To fill the void. So the patchwork is more of an argument in this case as you're putting it, more in favour of braiding in Indigenous legal traditions to fill the void?

Tuma: Yes, and that will cause Indigenous communities to take responsibilities, and manage their own communities.

Guy: And is there an issue with different legal systems applying to different groups in a [polity [00:45:19]?

Tuma: Well, that was often the lesson learned from our neighbours to the South when they were dealing with the Indigenous communities and the application of who you know who gets charged, or what happens in the – expecting civil dispute.

The Navajo have you know two different – they have the Navajo Court which is established by the Commerce Clause by the United States Government and that operates just like any other court in a way right? But the Navajo also have Peacemaking Court. And they have you know based on their own Indigenous laws and the Indigenous processes. And it you know causes peacemaking.

So when they first enacted it, or started it, or reclaimed it back they found that it was only Navajo people who used it. But over time they're beginning to see that non-Navajo people were using it more and more because they were getting a much more fairer outcome in their disputes.

And now what they're seeing is it also can be applicable and they have used it in disputes with corporations.

Guy: But you're talking to other people from Indigenous communities?

Tuma: No, I'm talking about you know within the Navajo community you can have a selection of what dispute mechanism that you can choose.

You know, if you can go to the Navajo Court System which is the regular system. Or you choose the Navajo Peacemaking. And in some ways the Haudenosaunee outside of Montreal, there's I think it's in Akwesasne they have a similar one. They have the Akwesasne Court. And when they look at it and they say well you know the Akwesasne Court there's dispute and resolution processes. How we're going to be doing it.

And people say well, it might not be working in this way. And people say how well? What way do you want it to work? And there's a lot of flexibility there, but it applies to their own people. It applies to their members. And it applies to people in their jurisdiction. You know regardless of whether they're non-Haudenosaunee, or Haudenosaunee, or even of a different, or even if they're Mi'kmaq.

Within the boundaries of their community, or their jurisdiction this will apply. And they don't necessarily take into account all of the jurisdictional issues. Like some things are just beyond their capacity, and we need capacity development in that sense. But they take what they can, and they'll work with it. And as slowly as they began to get more capacity, they'll take on more and more.

So it is – we're going to learn as we go along. And again it's part of that. As were go along and we learn new things, we learn that the shape of that pot may not be like a regular pot.

There may be other areas, or bulges, or stuff that work just as well.

Guy: So I wanted to get to something else. Which is that we have a Supreme Court here obviously that has been weighing in on a number of issues. Section 35 legal issues in particular over the course of now of a couple decades, a few decades.

I'm wondering how the new law implementing undrip affects this discussion? And I know it's a long-term project, but how difficult is it to be to reconcile our existing case law in I guess what we call Aboriginal Law?

Tuma: It won't be difficult if we all come to it with the proper mindset, and the proper heart and intention.

Guy: And what mindset is that?

Tuma: Well that we are willing to go ahead and embrace it, and bring it to fruitation. And then implement it.

Guy: And where do you expect the resistance to come from?

Tuma: It will be in you know I don't, you know people will say well I don't understand how this works. I don't want vito etcetera type of thing on many you know projects or anything like this.

And there may be confusion as to how undrip will impact upon the Federal laws. How it will impact upon the provincial laws. How it will impact upon municipal laws. And also how it'll impact upon administrative laws, or even in the private sphere, how does it impact upon disputes between entities in universities you know? There’s a lot of work that's going to have to be done. A lot of discussion.

What does it all mean? And not just for the Canadian Government and the provincial governments, or even the municipal governments or anywhere. Like you know there's entities that make law.

But even within our own Indigenous governance structures. We're going to have to look at this and say undrip is going to have a significant impact on us you know? And how do we look at what may have been an Indigenous legal order? For example you know the role of women, or skirts on women in ceremonies etcetera. Undrip provides equality between the genders, and how do we take that and apply it in the contemporary setting? And that's where the resistance is going to be. I don’t think nobody will say that you know these laws do not need to be brought up to speed. Or that they need to be brought into a contemporary setting, but it's just the work, and how we're going to do it. That’s going to be a difficult process.

Guy: And the Supreme Court? Will the Supreme Court have to revise some of its case law?

Tuma: Well I don't think the Supreme Court does revise any case law, but they'll go back and they'll look at an issue if it comes and depending on how it comes up.

They haven't done that you know, they don't do that often. So don't expect them to do that very often. The only case that comes immediately to mind is the Sue Rodriguez case on assisted dying. And they made a determination in that case previously, and then a decade later they revisited it again.

Guy: Or they'll have to evolve their juris prudence to meet the requirements of undrip?

Tuma: And that's where I think one of the – my problem with this moment was when I saw Justice O'Bonsawin appointed to the Bench there.

And it's wonderful to have an Indigenous person at the Supreme Court of Canada. But it's also wonderful to see that the Supreme Court of Canada is beginning to weave Indigenous law. And to look at it as a source in which they can use to resolve disputes, and make decisions. And that is really what we're really looking for in reconciliation.

Guy: To change the world you sometimes need to braid the rules together I think is the takeaway from this discussion.

Tuma: The phrase we use in Mi'kmaq is [Indigenous Language [00:52:48].

Guy: I'm sorry repeat that please?

Tuma: [Indigenous Language [00:52:50]

Guy: And that means?

Tuma: "We are braiding it."

Guy: We are braiding it.

Tuma: A phrase that I often use when I speak to my community members is that [Indigenous Language [00:52:59] "We are braiding legal orders."

Guy: Tuma Young, I want to thank you for taking the time to speak with us, and come on the show, and have this very interesting, fascinating conversation. I think it's going to make the evolution of law in this country quite interesting to follow over the years to come.

Guy: Yes, and I hope that the folks who are listening to this podcast, I hope I wasn't rambling on, or muttering away.

I hope I made some sense, but you know I trust that I did and I hope that everybody enjoys it.

Guy: I assure you, you did make a lot of sense. It made sense to be certainly.

Thank you Tuma Young.

Tuma: OK [Indigenous Language [00:53:47].


Narrator: You're listening to Modern Law presented by the Canadian Bar Associations National Magazine.

You can hear this podcast and others on our CBA podcast channel. On Spotify, Apple Podcasts, Google Podcasts, and Stitcher. Please rate and review us if you can. Subscribe to receive notifications for new episodes, and to hear some French listen to our Droit Moderne on Apple Podcasts.

And if you enjoyed this episode please share it with your friends, your colleagues, and if you have any comments, feedback or suggestions of topics that you'd like to hear us discuss here, feel free to reach out to us at Twitter @CBANatMag, and on Facebook. Also check out our coverage of legal affairs at NationalMagainze.ca, and thank you all for listening to this episode of Modern Law. We'll catch you next time.