Canada's Indigenous Constitution Flashcards
Chapter 2
Why could Canada be considered a judicially pluralistic state?
Because it embraces common law regimes alongside civil or common law and Indigenous legal traditions.
Sacred Law
Some Indigenous laws can be considered sacred if they stem from the Creator, creation stories or revered ancient teachings that have withstood the test of time.
Are treaties considered Sacred?
Yes, because they believe that the treaties were made with Creator and the Crown.
Are there exceptions to Indigenous people considering treaties as sacred?
Yes, the Haudenosaunee and the First Nations from British Columbia. Other people moved into their territory and established the government without their formal participation and legal consent.
What different views of treaties between Indigenous and white people?
non - Aboriginal - treaties are just another body of laws that define the status and rights of Aboriginal peoples
Aboriginals - see treaties as a nation-to-nation partnership, inter-societal law. the rights of the white people to be on their land are found in treaties.
Natural Law
Find and develop laws from observation of the physical world around them.
What are some examples of how natural laws are created?
Observing how a plant interacts with an insect
an insect interacts with a bird
Behaviors of a watershed, river, mountains, valleys etc. guide to legal action. Literally written on the earth.
How to learn the Natural law.
For Indigenous people learning natural law requires an intimate knowledge of how to read the world, this point of view does not require an intimate knowledge of how to read legal philosophy.
Deliberative Law
debate occurs, the proximate source of most Indigenous law is developed through people talking with one another. The deliberate nature means they can be continuously updated and remain relevant in the contemporary world.
What is a circle and how does it operate?
In a circle discussion, everyone is permitted to speak, only one at a time, must listen and wait for their turn to respond to another, from right to left, Meant to remind people of Mother Earth and their journey through time.
Positivistic Law
Legal tradition proclamation are made by hereditary chiefs, clan mothers, headmen, sachems or band leaders. Their laws may be considered positivistic because they rely more on the authority and intelligence of those who issue them than on the notion of creature, nature, or community deliberation.
Downside, could lead to corruption with the wrong leader
Customary Law
defined as those practices developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them.
Rests heavily on an individual’s unspoken agreement about how rights and obligations will be regulated between community members.
What are some challenges with Customary Law?
Since not always explain it as other law, their recognition, interpretation, and enforcement are ofter initially more difficult to achieve when other sources of lar intervene.
What are the 5 classifications of Indigenous laws?
sacred, natural, deliberative, positivistic and customary.
