Legal Pluralism and reconciliation[1]

Professor Val Napoleon[2]

In August 2019, the Māori Law Review, AlterNative: An International Journal of Indigenous Peoples, and the Aotearoa New Zealand Centre for Indigenous Peoples and the Law, jointly supported the visit to Aotearoa of Cree legal scholar, Professor Val Napoleon. During her visit to Aotearoa, Professor Napoleon delivered a number of lectures and presentations. The Māori Law Review is very pleased to publish Professor Napoleon’s essay entitled 'Legal Pluralism and Reconciliation', a version of which was originally presented at the Commission on Legal Pluralism conference that was held at the University of Ottawa in 2018

Legal Pluralism and reconciliation

Foreword by Carwyn Jones, Māori Law Review co-editor

In August 2019, the Māori Law Review, AlterNative: An International Journal of Indigenous Peoples, and the Aotearoa New Zealand Centre for Indigenous Peoples and the Law, jointly supported the visit to Aotearoa of Cree legal scholar, Professor Val Napoleon.

Professor Napoleon is from northeast British Columbia (Treaty 8) and a member of Saulteau First Nation. She is also an adopted member of the Gitanyow (Gitxsan) House of Luuxhon, Ganada (Frog) Clan. She is currently the Law Foundation Professor of Aboriginal Justice and Governance and the Director of the Indigenous Law Research Unit at the University of Victoria, British Columbia.

Professor Napoleon is an internationally recognised scholar in the field of Indigenous law and has taught and published on topics such as, Indigenous law and legal theories, Indigenous feminisms, governance, critical restorative justice, oral traditions, and Indigenous legal research methodologies.

Professor Napoleon is also one of the team that has driven the establishment of the ground-breaking Indigenous law degree programme at the University of Victoria. The program is taught jointly with a common law degree and core courses are delivered transsystemically, that is, across Canadian law and one or more Indigenous legal tradition. For example, students might take a Constitutional Law course which addresses Canadian constitutional law alongside Anishinaabe constitutional law. The programme welcomed its first cohort of students in September 2018 and is a leading example of deep engagement with Indigenous law in legal education. Professor Napoleon teaches Gitxsan land and property law along with common law property.

During her visit to Aotearoa, Professor Napoleon delivered a number of lectures and presentations including the Nin Tomas Memorial Lecture at the University of Auckland and a keynote lecture at Te Hunga Roia Māori o Aotearoa (Māori Law Society) conference held at Te Herenga Waka - Victoria University of Wellington. These presentations addressed important conceptual and practical issues relating to working with Indigenous law.

We are very pleased to publish Professor Napoleon’s essay entitled 'Legal Pluralism and Reconciliation', a version of which was originally presented at the Commission on Legal Pluralism conference that was held at the University of Ottawa in 2018. This paper builds on comments made in the Final Report of the Truth and Reconciliation Commission of Canada which addressed the experiences of Indigenous people in Canada’s Indian residential school system. The Truth and Reconciliation Commission issued 94 ‘calls to action’, including some relating specifically to the legal profession and legal education, aimed at advancing a process of reconciliation. The Commission defined reconciliation as ‘an ongoing process of establishing and maintaining respectful relationships’, including through the ‘revitalization of Indigenous law and legal traditions’.

Professor Napoleon’s essay explores the establishment of respectful relationships between state and Indigenous legal orders. These are issues which are equally relevant to reconciliation in Aotearoa and matters with which our legal system will need to grapple as Māori-Crown relationships continue to develop.

A tiny backdrop to the Canadian conversation

For over 100 years, Aboriginal children were removed from their families and sent to institutions called residential schools. The government-funded, church-run schools were located across Canada and established with the purpose to eliminate parental involvement in the spiritual, cultural and intellectual development of Aboriginal children. The last residential schools closed in the mid-1990s.

… more than 150,000 First Nations, Métis, and Inuit children were forced to attend these schools some of which were hundreds of miles from their home. The cumulative impact of residential schools is a legacy of unresolved trauma passed from generation to generation and has had a profound effect on the relationship between Aboriginal peoples and other Canadians.

Collective efforts from all peoples are necessary to revitalize the relationship between Aboriginal peoples and Canadian society – reconciliation is the goal. It is a goal that will take the commitment of multiple generations but when it is achieved, when we have reconciliation – it will make for a better, stronger Canada.[3]

Introduction

The terms ‘legal pluralism’ and ‘reconciliation’ are enormous, intuitively connected concepts that, for decades, have generated an immense interdisciplinary scholarship around the globe.[4] Both constructs, legal pluralism and reconciliation, with their diverse definitions and various political positionings, are prominent throughout the Indigenous legal and political discourses in Canada as well as elsewhere. In particular, reconciliation has been resonating nationally, as it should, since the 2015 release of the Truth and Reconciliation Commission of Canada’s (TRC)[5] extraordinary and far-reaching reports and calls to action.

There are rich and seemingly endless debates about the many issues,[6] strengths,[7] human rights,[8] problems,[9] and definitions generated by both the constructs of legal pluralism and reconciliation.[10] Some twenty years ago, Sally Engle Merry defined legal pluralism as a situation in which two or more legal systems co-exist in the same social field.[11] More recently, von Benda-Beckmann and Turner have argued that legal pluralism must be conceived as “a broad empirical and comparative concept that calls attention to the possibility that more than one legal system could be relevant for social interaction...”[12] The von Benda-Beckmann and Turner view of legal pluralism helps to create a broader understanding wherein “constellations of legal pluralism differ widely in scope and that the relative importance of their components varies. It has served to study modes of governance and the ways in which power relations are inscribed into law, and to understand how law regulates access to resources and justice – and the lack of it.”[13]

Turning to reconciliation, the TRC states that reconciliation is “an ongoing process of establishing and maintaining respectful relationships”.[14] Further, that the purpose of reconciliation is to repair, “damaged trust by making apologies, providing individual and collective reparations, and following through with concrete actions that demonstrate real societal change. Establishing respectful relationships also requires the revitalization of Indigenous law and legal traditions.”[15]

Against this vast and important literature, this is a small paper wherein I take up several questions that require more exploration and critical thought to identify what is useful and applicable to Indigenous legal worlds. First, what is the relationship between legal pluralism and reconciliation? I take the position that if reconciliation is being considered between Indigenous peoples and others, usually represented by a state, the starting place must be that Indigenous societies the world over had legal orders as part of their governance. And, if reconciliation is to be symmetrical, part of what must be comprehended is how Indigenous law relates to state law without assuming inferiority, or a deficit or incommensurability on the part of the Indigenous society and its law. Otherwise, the reconciliation process will be imagined entirely within a state law purview, a contradiction as well as a de facto denial of legal plurality.

Legal pluralism and reconciliation

My initial premise is that depending on the type of legal pluralist relationships that are in place between Indigenous peoples and the state, reconciliation might provide an opportunity and ongoing process through which Indigenous peoples and allies can build and maintain a decolonialised model of legal pluralism. Given this, the first step in reconciliation would seem to require a thoughtful, hard-nosed assessment of the type of legal pluralist relations that are in place. In other words, across what legal pluralist divide is reconciliation imagined and desired.

My other questions concern the possibilities of reconciliation at three levels: (i) within an Indigenous legal order, (ii) between Indigenous legal orders, and (iii) between an Indigenous legal order and the state legal order. When and how does reconciliation between legal orders amount to legal pluralism, and if so, what forms? I will also engage with two Indigenous narratives, one historic and one more recent, as sites of practical exploration into legal pluralism and the potentiality of reconciliation.

Legal pluralism denotes a situation where two or more legal systems coexist in the same social field. It has a long historical pedigree and exists everywhere from localised communities to the international system. Legal pluralism tends to be rooted in the state's historical and political context and as such, there is no standardised relationship between the state and non-state system. Legal pluralism has been defined in numerous ways. Definitions are almost always rooted in idealised notions of how the state and non-state justice systems should operate. Legal pluralism is used here as an umbrella term to capture states where there are multiple forms of binding dispute resolution.[16]

Both the constructs of legal pluralism and reconciliation contemplate more than one legal order, and in their most positive form, they provide ways to imagine dialogue and constructive engagement across those legal orders. Such an interaction involves the “encounter of two or more traditions of normative decision making, each of which contains its own methods, protocols, modes of argument, and processes of judgment”.[17] For our purposes here, the definition of legal pluralism will be the existence of multiple sources of non-state and state law within the same geographical area.[18] Interestingly, it has been argued that legal pluralism is the fact while legal centralism is a myth, an ideal, a claim, and an illusion.[19]

For the definition of reconciliation, I draw on the TRC’s calls to action which begins with, “reconciliation is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. For that to happen, there has to be awareness of the past, acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour.”[20] And again, the ambit of what is imagined in the name of reconciliation must include legal orders – Indigenous[21] and Canadian – as the starting place.

Legal pluralism has always existed between Indigenous societies across Great Turtle Island, and now it is part of Canada. Historically, Indigenous legal orders formed the entirety of the lawscape[22] across Great Turtle Island with intersocietal trade, marriage, agreements, and sometimes war, and the creation of geopolitical spaces with more than one legal order operating at any given time. Once past the initial period in which the traders and settlers needed Indigenous peoples to survive, colonialism denigrated and denied Indigenous law[23] attempting to erase the existence of Indigenous legal thought from the state mindset.[24] We know that during this time, Indigenous law did not go anywhere, but it was rendered invisible, sometimes made illegal according to state law, and often so disabled as to become inoperative or dysfunctional.[25] Given this, one requires a more complicated understanding of legal pluralism to account for continuing colonial conditions.

Historically and in the present day, the legal worlds of Indigenous peoples had to have been pluralistic with its continuing contemporary forms varying according to the violence of colonialism, power dynamics, their own resistance and present ability to practice their laws. The mere fact of the continuing existence of Indigenous law, however damaged and undermined, in a world along with imposed Canadian law means that legal pluralism was at least implicitly, if not explicitly, always a part of Indigenous peoples’ legal thought. Today, implicitly and explicitly, legal pluralism in its many conceptions is a part of rebuilding Indigenous legal traditions – in Indigenous direct political actions,[26] Indigenous communities,[27] and in universities with initiatives such as the dual Indigenous Law Degree Program (JID/JD) launched in 2017 at the Faculty of Law, University of Victoria.[28]

Reconciliation between legal orders

Turning now to the big issue of reconciliation, as the TRC’s definition makes clear, there is no place of arrival. Rather, reconciliation across societies requires a commitment to maintaining respectful relationships that are founded on understanding the past and to creating a non-colonial future. Given this, the work requires first setting out the terms of measure for reconciliation, and second, articulating what is actually being reconciled (e.g., aspects of social, political, economic, or legal life). In other words, how will you know whether reconciliation has been started or established, and whether it has been successful? What exactly are the terms of measure or the standards?

According to the TRC, future respectful relationships require the revitalisation of Indigenous law and legal traditions.[29] When thinking about the relationship between Canadian law and Indigenous law, it is easier to consider thinking across the respective legal orders to relate and connect purposes, aspirations, and functions of law rather than the actual form of law or the public legal institutions through which law operates. For example, the law of most Indigenous societies aspired to community safety, fairness, inclusion, dignity, and legal agency.[30] These aspirations are similar to those of state law and to other legal orders around the world. What differs is how Indigenous peoples structured their non-state legal orders, and legal institutions, and their legal processes and practice to work toward their aspirations. To build on the words of the TRC, for reconciliation to be possible, there must be an awareness of the past and the historic existence of Indigenous legal orders, acknowledgement of the harm that has been inflicted to the legal order, recognition of the causes, and action to change behaviours so that it is possible to build an ongoing mutually constructive and respectful relationship between legal orders into the future.[31] Given this, some creative reflection on what constitutes a respectful relationship between legal orders becomes necessary.

Why does this matter? There are some who argue that reconciliation today is basically another form of colonisation.[32] While there is certainly some truth to this bleak statement and on-the-ground experiences that would verify this perspective,[33] I take the position that unless we interrogate our own expectations of reconciliation and set out our terms of measure, we will miss fully understanding both our successes and failures, and their causes. How we build a future does matter, and how Indigenous law relates to Canadian law matters too since neither state law nor Indigenous law are going anywhere. Again, reconciliation, as defined by the TRC, is one way to deliberately restructure a robust legal pluralism in a way that is not oppressive.

Legal pluralist archetypes and strategies

We know that not all legal pluralism is created equally. From a feminist perspective, the early work of Ambreena Manji is insightful and critically important to thinking about Indigenous legal pluralism and Indigenous feminist concerns because she makes visible the legal worlds of women. Manji’s first argument is that in order to articulate a feminist view “of the (legal) world requires an engagement with legal pluralism”[34] which necessarily moves feminism away from legal centralism and “out of the orbit of state law”.[35] This shift in orientation is necessary in order to look beyond the reform of state legal systems and to see law in non-western societies with research into “issues such as marriage, kinship relations, labour and property rights”.[36] For Manji, failure to make this shift in order to see beyond the state means that “feminist theory remains simply reactive, merely a critique, paradoxically it affirms the very paradigms it seeks to contest … it remains on the very ground it wishes to question and transform”.[37]

In addition to Manji’s approach, I draw on the helpful work of Geoffrey Swenson here to provide a framework to begin imagining a non-oppressive, decolonised form of legal pluralism.[38] While his case studies were located in the post-conflict countries of Timor-Leste and Afghanistan, many of Swenson’s insights are applicable to Canada. From Manji’s perspective and mine, Swensen is still operating within the orbit of state law with his four theoretical archetypes for placing and analysing the fluid relationships between state and non-state legal orders’ sectors: combative, competitive, cooperative, and complimentary.[39] Briefly, these are:[40]

• Combative: Here the state and non-state legal orders do not recognise the validity of each other and instead, actively seek to destroy each other.[41] Recall the state prohibition of the potlatch and the state killing of the legitimate actors legally responding to wetikos (Cree, also known as windigos in Anishnaabemowin) for example.[42] The potlatch (or feast) was and still is the important legal, political, and economic forum and institution for collectively witnessing major decisions for the memory commons for Pacific and northcoast peoples.[43]
• Competitive: Here, there are conditions of deep tensions between the state and non-state legal orders and frequently clashes, but the state’s legal authority remains essentially unchallenged. Nonetheless, there exists some mutual respect for the autonomy of each legal system and its right to exist. Arguably the intersocietal period in which the historic treaties were first negotiated fits this archetype.[44]
• Cooperative: The non-state legal order retains a significant degree of authority and autonomy, and the respective legal authorities are willing to work together on shared goals. Perhaps specific pockets of self government and administration (e.g., land regimes established under the Canadian First Nations Land Management Act)[45] or justice type initiatives (e.g., policing and child welfare) established by agreement might fit in this archetype, but of course would require a critical assessment on the part of the Indigenous parties.
• Complimentary: Both the state and non-state legal order exist, but the non-state legal system operates under the umbrella of state authority. Perhaps various types of government-to-government agreements or modern-day treaties reflect a complimentary archetype of legal pluralism, or at least holds the potential for this type of arrangement.

Swensen is careful to point out that these are descriptive[46] categories without suggesting that one legal order is automatically superior insofar as human rights, especially since in combative (and colonial) conditions, the institutional, political, and legal checks on authorities in non-state (read Indigenous) legal orders were intentionally suppressed or destroyed.[47] Arguably, it is this very suppression and destruction of Indigenous law that has generated so much of the violence and conflict experienced in many Indigenous communities today. For example, I have long argued that geopolitical spaces where Indigenous law has been undermined causes gaps in Indigenous legal worlds which when combined with failures of Canadian law, creates spaces of lawlessness where violence happens. It is usually the most vulnerable who suffer the consequences, mainly Indigenous women and girls.[48] While this level of violence exists in some Indigenous communities, this brutal phenomenon is also found in non-Indigenous cities where Indigenous women and girls are sexually assaulted or murdered, or they disappear.[49]

The past relationships between Indigenous and state legal orders reflect the full spectrum of Swensen’s archetypes – sometimes simultaneously. This emphasises the importance of appreciating the constant fluidity of these legal pluralist relationships as they are reflected in any current contexts. Given that the fluidity of past legal pluralist relationships also exists in the present and will do so into the future, how might we account for this as we rebuild Indigenous legal orders in Canada and elsewhere?

Swensen continues to develop his theory by identifying five common strategies that are usually applied to establish varying forms of legal pluralistic relationships between state and non-state legal orders. These range from positive and proactive, to colonial and destructive:[50]

• Bridging: Cases are allocated to state or non-state legal orders based on state law, participant preferences, or venue appropriateness. For example, serious crime in Canada is within the jurisdiction of the federal government while summary offences and prevention may be negotiated within local community justice mandates.
• Harmonisation: Non-state legal outcomes are consistent with the state’s core values. Examples here might include some of the Aboriginal justice initiatives operating within the auspices of the federal Department of Justice.
• Incorporation: The distinction between the non-state and state legal orders are eliminated, and non-state justice becomes state justice. Some of the historic adoption and marriage cases might fit here where the courts found the Indigenous legal proceedings to be legally valid.[51]
• Subsidisation: State legal orders seek to increase its capacity and appeal relative to non-state legal orders. Examples here include legislative reforms, symbolic representation, capacity building, public engagement, and some self-government agreements and political arrangements.
• Repression: State legal orders actively undermine and try to eliminate non-state legal orders.

Again, it should be immediately apparent that all these strategies have been employed by the state at different times in the legal pluralistic relationships between Indigenous peoples and Canada. Furthermore, in variable forms, all these strategic practices continue today as Indigenous peoples struggle to protect and rebuild their legal orders. Given this, to discern these strategies in practice, a deeper understanding of Indigenous law is necessary to get past generalities and to create the necessary traction for Indigenous peoples to rebuild their legal worlds and legal practice. This would require what Swensen suggests, a thicker conception of the rule of law would include its extensive institutional, economic, cultural, and political requirements.[52] This is in contrast to a thin conception which would be limited to an understanding of law being “set forth in advance (be prospective), be made public, be general, be clear, be stable and certain, and applied to everyone”.[53] While obviously important to law’s overall legitimacy, such a thin conception of Indigenous law, at its best would be partial and impoverished because it would not include legal history (or other history for that matter), capitalism as the foundation for colonialism, and structure and organisation of social, political, economic, or legal authorities and institutions. The importance of societal structure to understanding that society’s legal order cannot be overstated as it is essential to being able to discern the aspirations of law, logics, patterns, change, and legitimacy.[54] In short, whether one brings a thin or thick conception of law will determine the depth and scope of legal pluralism of one’s analysis.

Jeremy Webber interrogates some of the assumptions found in the legal pluralism scholarship and his findings are in line with Swensen’s arguments for legal pluralist fluidity and thick conceptions of law. Key in Webber’s work is his insistence on the importance of deliberate and conscious action, and disagreement in the formation of legal norms. His criticism is that legal pluralists tend to speak in a descriptive mode that simplifies lived legal pluralism which can “obscure the very heart of law: the need to establish, at least provisionally, a single normative position to govern relations within a given social milieu, despite the continuing existence of normative disagreement.[55]

Why does this matter? It matters because without a critical understanding of Indigenous law as law, there is a tendency to describe and idealise Indigenous law as if it has no internal modes of argumentation and legitimisation, or collective reason and accountability. Indeed, treating Indigenous law in this overly simplistic way reduces it from a normative order requiring intellectual engagement and reasoning, to mere behaviour. Without such a critical perspective, one cannot see how Indigenous legal orders manage and resolve arguments to solve human problems – critical elements in the actual practice of law.

Internal reconciliation within an Indigenous legal order

I turn now to an example concerning reconciliation within an Indigenous legal order, that of Gitxsan society.[56] Here, Xhliimlaxha (in English, Martha Brown), is recounting what she told some young people about their illegal use of her fishing site.

Why not ask if you can use it? I said to them. They said, but their grandmother used it. Yes, I said, lots of people have used it, but we own it. If you just ask me, you can use it. I will even tell you where you can set your net. By marrying into our House they had the right to use it in the past. But those marriage ties died out long ago, and they were told, right in the feast, that they could not use it anymore.[57]

In this short excerpt, Xhiimlaxha makes it clear that there are ownership laws and as a House Chief, she along with her House members, own the lands and fishing site she is referring to. As the territory owner, she knows the land, water ways, and where the fishing sites are, and she has the authority to determine access and resource use. Xhliimlaxha explains that there are processes for approving varying terms of access and use, and for ending those arrangements. She also explains that this particular right of access to the fishing site on her territory was legal for a set period of time according to certain terms, but that use was ended publicly at a feast where most Gitxsan legal business is declared and witnessed for future recall.

The Gitxsan people she was speaking to did not know Gitxsan land laws and were in violation of those laws when they went to her fishing site. They either had not attended the public forum of the feast where the matter had been attended to or they had not received the necessary information due to some other cause. Possibly, they ignored the legal decisions and simply carried on fishing. Xhliimlaxha also stated that she could have given approval had she been asked permission, so she was prepared to be generous and reasonable. The individuals that Xhliimlaxha is addressing have obviously made a claim based on former use, perhaps informed by a notion deriving from use or adverse possession in western property law.

For this next section, I have found that graphic representations are helpful, if not critical, to understanding the differing temporality of the Gitxsan legal perspectives that are at issue. The following chart[58] sets out the internal reconciliation problems in the Gitxsan legal world raised in this Xhliimlaxha example.

What is necessary for a coherent operation of Gitxsan law to be possible, an internal reconciliation between the legal perspectives held by Xhiimlaxha and those held by the young people illegally using her fishing site. Without such a deliberate and thoughtful reconciliation within the Gitxsan legal world, conflict such as that set out here, will continue to be generated.

Narrative sites for exploration of historic and present-day legal pluralism and reconciliation

In what follows are two examples drawn from historic and present-day references of Gitxsan narratives in which we find legal pluralist and reconciliation elements that offer a fruitful source of thinking about current questions.

Dim Xsaan

This first narrative is part of an ancient Gitxsan oral history[67] and what makes it fascinating is that it involved Nisga’a, Wet’suwet’en, and Gitxsan peoples (three distinct non-state peoples with decentralised legal orders),[68] all of whom recognised the exercise of Gitxsan law in a case involving a Wet’suwet’en person while on Nisga’a lands. At trial in the Delgamuukw case, hereditary chief, Stanley Williams (Gwis Gyen), told the Court that it was determined that no compensation would be paid because the wrongdoer broke the law (a hla gansxw).[69] According to Mr. Williams, this event occurred thousands of years ago when Dim Xsaan raised a pole with a stone hlgimadaa sook crest on the top:

Dim Xsaan really wanted to protect this pole and his crest, and when the…Hagwilget people, Kispiox, Gitan'maaxs, Gitwingax, they travelled down to…make some oolichan grease. And the people of Kitwancool – and when they started travelling, there was a man from – a young man from Hagwilget [Wet’suwet’en].…they started travelling towards the Nass. This would be about March because this is when the oolichans run at the Nass. As they got closer to the boundary line where the pole and the stone figure was, known as Hlgimadaa sook, the young man from Hagwilget looked up and he laughed at this crest, the stone figure on top of this pole, and he…took a stick and he pushed it down, and…the stone fell.

Dim Xsaan found out who made fun of his crest and the pole [he then travelled to the Nass Valley], and as [he] arrived to the village of the Nass, Dim Xsaan took his spear and he knew this young person from Hagwilget was…in this certain house, and he went in and…he stabbed him on the chest with the spear. There was no hard feelings between the [Wet’suwet’en] people of Hagwilget and the people of the Nishga, because this young man had broken the law. He should have never done that. And what happened is…some of the people from Hagwilget came and they picked the body up and they left without confronting the Nishga people.[70]

Since all the parties agreed that the young man was in the wrong and “had broken the law”, there was no compensation or retaliation as a result of his capital punishment. In this case, and in some of the other older cases, the punishment was extreme in the form of legal killing, but the chief has the authority to vary or even to waive the punishment altogether, usually when the wrongdoer accepts responsibility for her or his actions. For example, regarding the law of trespass, hereditary chief Solomon Marsden (Xamiaxyetxw) told the Court that if “the person that trespasses, if he apologizes to the chief then the chief would forgive this person”.[71] One must keep in mind the extensive arrangements, as evidenced by Xhliimlaxha, of privilege to lands and resources though the kinship system. Given this, the first order of business in any trespass situation would be to determine a person’s lineage and whether he or she had access or resource privileges through their complex of legal relationships – mother’s side, father’s side, grandparents, spouse, or some other use or access arrangement.

At the heart of this matter is the harm and shame to Dim Xsaan’s daxgyet or chiefly authority.[72] In this decentralised society, authorities are distributed horizontally, and it is the protection of the chiefs’ daxgyet that in part maintains and balances the legitimacy of the overall political and legal structures. A chief’s daxgyet enables a chief to maintain her or his position and role, and the prerogatives of their name (e.g., access to land, resources, etc.). A Chief’s own bad behaviour or disrespectful behaviour toward her/him that remains unaddressed can undermine her/his daxgyet which in turn will cause shame and the diminishment of her /his authority in the Feast Hall (i.e., the main public political, legal, and economic assembly).

So what went on in this narrative? How does it concern legal pluralism? First of all, there were three non-state legal orders involved here: Gitxsan, Wet’suwet’en, and Nisga’a. The people within each legal order had to understand the full legality of each of the others, as well as the land owned through each legal order. There had to have been an understanding and acceptance of mutual lawfulness, and of unlawfulness, in this case with the shaming and damage to the Dim Xsaan crest, access across territories, legal killing, and compensation. Gitxsan law was acted upon in Nisga’a territories, and it was upheld on by the Nisga’a and the Wet’suwet’en. Also, Wet’suwet’en law was recognized on both Nisga’a and Gitxsan territories by allowing access and recovery of the Wet’suwet’en man’s body. Furthermore, this oral history has been recounted for thousands of years because it forms an important part of the legal memory or commons that future legal decisions can draw upon. Arguably, this narrative provides an example of positive legal pluralist relations that allowed the instance of this conflict to be resolved in this way. In other words, without such legal pluralist relations in place, this conflict could not have been dealt with as it was.

Returning to Swensen’s archetypes, again, the shortcoming is his conceptual state orbiting. However, in imagining extending legal pluralism between the non-state legal orders here and setting aside the state, the closest fit would be the cooperative category, and the closest response category would be that of incorporation. Arguably, there are elements of bridging, harmonisation, and incorporation in the interactions between the Gitxsan, Wet’suwet’en and Nisga’a at different moments, but given that the purpose here is to make historic Indigenous legal pluralism visible, the usefulness of further extension of Swensen’s archetypes is limited. As Jeremy Webber has suggested, they are starting points to reasoning and are “destined to be surpassed and developed”.[73]

Wet’suwet’en

In another recent example which took place in the non-Indigenous town of Smithers, B.C., Wet’suwet’en House chief Mabel Forsythe was wrongly accused of shoplifting, and she and her daughter were publicly searched on the sidewalk of the main street.[74] One of the Gitxsan expert witnesses in Delgamuukw, Mrs. Mary McKenzie (Gyoluugyat) explained:

Another example is when a person is embarrassed by another group, like last summer in the City of Smithers a lady Chief again was embarrassed. Her case came up as theft at that time, so after the court was finished she put on a Feasting to wipe off that embarrassment, and that word theft, that she steals something, that's no longer to be remembered towards her when she put this Feast on.[75]

In this case, the police officer further detained Mrs. Forsythe and her daughter by driving them to the Forsythe’s residence where he questioned Mrs. Forsythe’s other daughter. No charges were laid, and Mrs. Forsythe filed a legal action for damages in which she successfully claimed the cost of hosting a shame Feast so that she could publicly cleanse her chief’s name. The Court “found that Mrs. Forsythe and her daughter were wrongfully imprisoned and as a result suffered embarrassment and shame”.[76] When assessing damages, the Court took into account Mrs. Forsythe’s greater rank in the community and awarded her $2,000 toward the cost of a shame Feast.[77]

The significance of this case was that it took place in a non-Wet’suwet’en community, involved non-Wet’suwet’en parties, and Mrs. Forsythe argued her injuries in a non-Wet’suwet’en court. In other words, the shame was caused by non-Wet’suwet’en people (although on Wet’suwet’en land) in front of other non-Wet’suwet’en people (except for Mrs. Forsythe’s daughter) – but the shame still had to be dealt with according to the imperative of Wet’suwet’en legal traditions. In this case, Mrs. Forsythe successfully argued the application of Wet’suwet’en law.

To return to Swenson’s framework, this Wet’suwet’en narrative fits Swensen’s complimentary archetype, and the response category would be subsidisation.

Conclusion

As a result of their widespread acceptance and usage, and because so much is at stake, reconciliation and resurgence are used in a wide variety of ways. These terms are continuously contested and reformulated in practice, policy, and academic research. Thus practice-based struggles over reconciliation and resurgence are also struggles over the meanings of the terms themselves. Reconciliation and resurgence have become contestable and contested concepts within the semantic field and human activities in which they are used.[78]

There is no arrival in the integrally intertwined journeys of reconciliation or legal pluralism – they will remain contestable and contested as demonstrated in the examples above. But there is hope and promise – with hard work, and critical legal and political assessment by Indigenous peoples. There is no room for romanticism here (or anywhere else for that matter). To build on the words of the TRC, for reconciliation to be possible, there has to be awareness of the past, acknowledgement of the harm that has been inflicted to the legal order, acknowledgement of the causes, and action to change behaviours so that it is possible to build an ongoing mutually constructive and respectful relationship between legal orders into the future.[79] And to draw from Swenson, “Robust legal pluralism challenges the state’s claim to a monopoly on legitimate resolution of legal disputes as well as the ideal of uniform application of the law.”[80] There is a way forward, but it must be firmly grounded at the local level in Indigenous law and experiences – where the legal world of Xhliimlaxha, Dim Xsaan, Gyoluugyat and all the others are taken seriously and interrogated as legal records and precedents – so that their teachings can be applied today.

Notes

[1] Presented at the plenary panel of the Commission on Legal Pluralism held at the Faculty of Law, University of Ottawa, August 22, 2018. The Truth and Reconciliation Commission of Canada was created as a result of the largest class action in Canadian history, and was officially launched in 2008 as part of the Indian Residential Schools Settlement Agreement. This was a six-year process, intended as a process that would guide Canadians through the difficult discovery behind the residential school history and its human consequences, the TRC was meant to lay the foundation for lasting reconciliation across Canada. See Ry Moran, Truth and Reconciliation Commission (September 24, 2015) online: https://www.thecanadianencyclopedia.ca/en/article/truth-and-reconciliation-commission.

[2] LLB, PhD (Law and Society), Law Foundation Chair of Aboriginal Justice and Governance, Director of the Indigenous Law Degree Program and the Indigenous Law Research Unit, Faculty of Law, University of Victoria. I am a member of the Saulteau First Nation in northeast British Columbia, one of the communities in the historic Treaty 8 area. I am also an adopted member of the House of Luuxhon, Gitanyow, northern Gitxsan, and I lived and worked in Gitxsan and Wet’suwet’en lands for over two decades.

[3] Truth and Reconciliation Commission of Canada, Reconciliation … towards a new relationship, n.d., online: http://www.trc.ca/reconciliation.html.

[4] For an informative historical perspective, see Keebet von Benda-Beckmann & Bertram Turner, Legal Pluralism, Social Theory, and the State (2019) 50:3 The Journal of Legal Pluralism and Unofficial Law 255, online: https://www.tandfonline.com/loi/rjlp20 [von Benda-Beckmann & Turner]. Also see seminal article, John Griffiths, “What is Legal Pluralism?” (1986) 24: 1 Journal of Legal Pluralism and Unofficial Law 55.

[5] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) [TRC Summary Report].

[6] For example, Geoffrey Swenson, Legal Pluralism in Theory and Practice, International Studies Review (2018) 0 1 [Swenson]. Also see Emmanuel Melissaris, The More the Merrier? A New Take on Legal Pluralism, Social and Legal Studies (2004) 13:1 57.

[7] Rebecca Johnson, Ceremony as Remedy? A Heiltsuk resource for doing TRC#28 work in the law school (March 8, 2020) reconciliationsyllabus, online: https://reconciliationsyllabus.wordpress.com/author/rebeccajohnsonlaw/.

[8] Ghislain Otis, Individual Choice of Law for Indigenous People in Canada: Reconciling Legal Pluralism with Human Rights? (2018) 8:2 UC Irvine Law Review 207 at 225. Otis argues that modern treaties have added a new layer of complexity to legal pluralism in Canada, and that individual choice of law is one possible way of reconciling legal pluralism with human rights at 225.

[9] See for instance, Jean L. Cohen, The politics and risks of the new legal pluralism in the domain of intimacy (2012) I–CON 10, 380; and Ambreena S. Manji, Imagining Women’s ‘Legal World”: Towards a Feminist Theory of Legal Pluralism in Africa (1999) 8:4 Social & Legal Studies 435 [Manji, Women’s Legal World].

[10] See for example: Kim Stanton, Reconciling Reconciliation: Differing Conceptions of the Supreme Court of Canada and the Canadian Truth and Reconciliation Commission (2017) 26 Journal of Law and Social Policy 20; Matt James, Changing the Subject: The TRC, Its National Events, and the Displacement of Substantive Reconciliation in Canadian Media Representations (2016) 51:2 Journal of Canadian Studies 362; Jesse Wente, Reconciliation is dead and it was never really alive (February 25, 2020) Globe and Mail, online: https://www.cbc.ca/news/canada/toronto/jesse-wente-metro-morning-blockades-indigenous-1.5475492;

[11] Sally Engle Merry, Legal Pluralism, (1988) 22:5 Law and Society Review 869 at 870.

[12] von Benda-Beckmann & Turner, supra note 4 at 264.

[13] Ibid.

[14] Ibid.

[15] TRC Summary Report, supra note 5 at 16. The emphasis is mine.

[16] Meghan Campbell & Geoffrey Swenson, Legal Pluralism and Women’s Rights after Conflict: The Role of CEDAW (2016) 48 Columbia Human Rights Law Review 112 at 115.

[17] Jeremy Webber, Legal Pluralism and Human Agency (2006) Osgoode Hall L.J. 44 167 at 170 [Webber, Legal Pluralism].

[18] Shivit Bakrania with Huma Haider, Safety, Security and Justice (Birmingham, UK: GSDRC University of Birmingham, 2016) at 12.

[19] Referring to the work of John Griffiths, see Margaret Davies, Oxford Handbooks Online, www.oxfordhandbooks.com at 4.

[20] TRC Summary Report, supra note 5 at 6.

[21] There is no one Indigenous society in Canada. Rather, there are about 60-80 or so Indigenous societies, that comprise over 20 linguistic groups. Canada, Report of the Royal Commission on Aboriginal Peoples, Restructuring the Relationship Volume 2 (Ottawa: Supply and Services Canada, 1996) at 182 [RCAP Restructuring].

[22] Nicole Graham defines “lawscape” as a perception and understanding of a landscape complete with humans and human practices and law across it. In other words, law is never placeless even though we often treat it as such, nor is the landscape a “detached and separate physical realm, ‘the land’”. Nicole Graham, Lawscape: Property, Environment, Law (Oxfordshire: Routledge, 2011) at 5.

[23] Keith Cherry, Practices of Pluralism: A Comparative Analysis of Trans-Systemic Relationship in Europe and on Turtle Island (2020) PhD Dissertation, Faculty of Law, University of Victoria, online: https://dspace.library.uvic.ca/ [Cherry, Practices of Pluralism].

[24] Hadley Friedland & Val Napoleon, 2015 1:1 “Gathering the Threads: Indigenous Legal Methodology” Lakehead Law Journal 33 [Friedland & Napoleon, Gathering]; and Hadley Friedland & Val Napoleon, “An Inside Job: Engaging with Indigenous Legal Traditions through Stories” 2016 Special Issue, McGill Law Journal 725 [Friedland & Napoleon, Inside Job].

[25] Val Napoleon & Hadley Friedland, “From Roots to Renaissance”, in Markus Dubber, ed., Oxford Handbook of Criminal Law (Oxford: Oxford University Press, 2014) [Napoleon & Friedland, Renaissance].

[26] For example, Chantelle Bellrichard, Wet’suwet’en, B.C. and Canada sign MOU on negotiations for legal recognition of title (May 14, 2020) CBC online: https://www.cbc.ca/news/indigenous/wetsuweten-mou-title-negotiations-signing-1.5570128.

[27] There are currently two Indigenous law research centres that are partnering with Indigenous communities across Canada to rebuild specific areas of Indigenous law such as lands, water, child welfare, governance, dispute resolutions, gender, etc. See for example the Indigenous Law Research Centre at the Faculty of Law, UVIC, online: https://www.uvic.ca/law/about/indigenous/indigenouslawresearchunit/index.php and the Wahkohtowin Law and Governance Lodge at the Faculty of Law, University of Alberta. A new center has been established, the Indigenous Legal Orders Institute at the Faculty of Law, University of Windsor, online: http://www.uwindsor.ca/law/Indigenous-Legal-Orders-Institute.

[28] Joint Degree Program in Canadian Common Law and Indigenous Legal Orders (JD/JID), University of Victoria, https://www.uvic.ca/law/about/indigenous/jid/index.php.

[29] TRC Summary Report supra note 5 at 16.

[30] See for example, Napoleon & Friedland, Renaissance, supra note 25; Friedland & Napoleon, Gathering, supra note 24; Friedland & Napoleon, Inside Job, supra note 24; and Val Napoleon, Gitxsan Democracy: On Its Own Terms in James Tully et al, eds., The Crisis in Democracy (provisional title) [forthcoming, 2021] [Napoleon, Gitxsan Democracy].

[31] TRC Summary Report, supra note 5 at 6.

[32] See for example, see Fred Guerin, The Colonization of Reconciliation (May 26, 2019) Ricochet Public Interest Journalism, online: https://ricochet.media/en/2633/the-colonization-of-reconciliation. But also see, Tony Penikett, Reconciliation: First Nations Treaty Making in British Columbia (Vancouver: Douglas & McIntyre, 2006).

[33] Justine Hunter, Solidarity protest for Wet’suwet’en at B.C. Legislature winds down after five arrested for mischief (March 5, 2020) Globe and Mail, online: https://www.theglobeandmail.com/canada/british-columbia/article-solidarity-protest-for-wetsuweten-at-bc-legislature-winds-down/; and Leyland Cecco, Canada: Wet’suwet’en sign historic deal to negotiate land rights (May 15, 2020) The Guardian, online https://www.theguardian.com/world/2020/may/15/canada-wetsuweten-historic-deal-land-rights-pipeline.

[34] Manji, Women’s Legal World supra note 9 at 436.

[35] Ibid. at 439.

[36] Ibid.

[37] Ibid.

[38] Swenson supra note 6.

[39] Ibid. at 5.

[40] Ibid. at 17 and 19. While Swenson uses the term “justice sector”, I have instituted “legal order” or “legal system”.

[41] See the historical treatment of legal pluralism in Canada’s relations with Indigenous peoples, Cherry, Practices of Pluralism supra note 23.

[42] According to Hadley Friedland, the wetiko is a Cree legal construct that allows a collective to legitimately deal with those that have become harmful. See Hadley Friedland, The Wetiko Legal Principles (Toronto: University of Toronto, 2018); and Val Napoleon, et al, Mikomosis and the Wetiko (Victoria: UVIC, 2015).

[43] Richard Overstall, Encountering the Spirit in the Land: ‘Property’ in a Kinship-Based Legal Order in John McLaren, ed., Despotic Dominion: Property Rights in British Settler Societies (Vancouver: UBC Press, 2004) [Overstall, Property].

[44] The term ‘intersocietal’ has been usefully employed for this period. See Janna Promislow, Towards a Legal History of the Fur Trade: Looking for Law at York Factory, 1714-1763 (2004) PhD Dissertation (unpublished) archived with the author. See for example, Janna Promislow, ‘Thou wilt not die of hunger ... for I bring thee merchandise’: Consent, Intersocietal Normativity and the Exchange of Food at York Factory, 1682-1763” in Jeremy Webber & Colin Macleod, eds., Between Consenting Peoples: Political Community and the Meaning of Consent (Vancouver: UBC Press, 2010) 77-114.

[45] First Nations Land Management Act, S.C. 1999, c. 24.

[46] According to Sally Engle Merry, “Legal pluralism is not a theory of law or an explanation of how it functions, but a description of what law is like. It alerts observers to the fact that law takes many forms and can exist in parallel regimes. It provides a framework for thinking about law, about where to find it and how it works.” See Sally Engle Merry, McGill Convocation Address: Legal Pluralism in Practice (2013) 59:1 McGill Law Journal 1 at 2 [Engle Merry, Convocation].

[47] Swenson, supra note 6 at 335. Also see the important report, International Council on Human Rights Policy, When Legal Worlds Overlap: Human Rights, State and Non-State Law (Geneva: ATAR Roto Press, 2009).

[48] Val Napoleon, An Imaginary for Our Sisters, book chapter for Jeffery Hewitt and Richard Moon, eds., Indigenous Spiritual Collection [provisional title], forthcoming 2020.

[49] See the two-volume Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019) online at: https://www.mmiwg-ffada.ca/final-report/; and Val Napoleon & Hadley Friedland, Expert Witness Testimony (2017) Quebec Commission d’enquéte sur les relations entre les Autochtones et certains services publics, online: https://www.cerp.gouv.qc.ca/index.php?id=2.

[50] Swenson, supra note 6 at 440.

[51] There is a long history of Canadian courts considering or incorporating, varying degrees, Indigenous laws concerning adoption, marriage, band custom elections, and other matters. See for example, Sébastien Grammond, Terms of Coexistence: Indigenous Peoples and Canadian Law (Toronto: Carswell, 2013) at 374-385; Norman K. Zlotkin, Judicial Recognition of Aboriginal Customary Law in Canada: Selected Marriage and Adoption Cases (1984) 4 C.N.L.R. 1; Cindy L. Baldassi, The Legal Status of Aboriginal Customary Adoption Across Canada: Comparisons, Contrasts, and Converges (2006) 63 U.B.C.L. Rev. 63. More recently there is a line of Canadian cases that are actually engaging with Indigenous law: R v Ippak 2018 NUCA 3 (Justice Berger, concurring reasons); Beaver v. Hill 2018 ONCA 816; Restoule v. Canada (Attorney General) 2018 ONSC 7701 (Justice Hennessy); Pastion v Dene Tha’ First Nation 2018 FC 648 (Justice Grammond); Ontario Lottery and Gaming Corporation v. Mississaugas of Scugog Island First Nation 2019 FC 813 (Justice Grammond); Alderville Indian Band v Canada 2014 FC 747); and Clark v. Abegweit First Nation Band Council 2019 FC 721 (Justice Favel).

[52] Swenson, supra note 6 at 442. While Swenson is writing about the rule of law, I am extrapolating his discussion to law, and to Indigenous law specifically.

[53] Ibid.

[54] Friedland & Napoleon, Gathering, supra note 24; Friedland & Napoleon, An Inside Job, supra note 24; and Napoleon & Friedland, Renaissance, supra note 25.

[55] Webber, Legal Pluralism, supra note 16 at 169.

[56] The Gitxsan were one of the plaintiff groups in the seminal title court action, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010). The other plaintiff group was the Wet’suwet’en.

[57] Richard Daly, Our Box Was Full (Vancouver: UBC Press, 2005) at 242 [Daly, Box]. Xhliimlaxha is also spelled Khliimlaxha.

[58] I am grateful to Richard Overstall for his clarifying additions to my original chart.

[59] See generally, Val Napoleon, Ayook: Gitksan Legal Order, Law, and Legal Theory (PhD Law dissertation, University of Victoria, 2009) 91 Unpublished, archived with author. [Napoleon, Ayook].

[60] Indian Act, R.S.C. 1985, c. I-5.

[61] Ibid.

[62] In addition, according to the Royal Commission on Aboriginal Peoples, “In the case of First Nations, for example, of the effects of the band orientation of the Indian Act has been to foster loyalties at the level of the local community, at the expense of the broader national affinities arising from a common language, culture, spirituality and historic experiences.” Canada, Report of the Royal Commission on Aboriginal Peoples, Restructuring the Relationship Volume 2 (Ottawa: Supply and Services Canada, 1996) at 235 [RCAP Restructuring].

[63] In former times, feasts were held for all major legal, social, and political transactions including marriage, shaming (to control harmful and injurious behaviour), cleansing (to restore spirits after serious injury), restitution, birth, graduation (to celebrate achievements), naming, reinstatement (for Gitxsan persons who disobeyed the laws), coming of age, “smoke” (for obligations related to organizing settlement feasts), gravestone placing, settlement (repayment of obligations arising from a death), divorce, and pole raising. See generally, Daly, Box supra note 57.

[64] As an example of continued positive pragmatism, see Naiomi Metallic, “Indian Act By-Laws: A Viable means for First Nations to (Re)Assert Control over Local Matters Now and Not Later” (2016) 67 UNBLJ 211. For examples, see: First Nations Land Management Act, S.C. 1999, c. 24; the Family Homes on Reserves and Matrimonial Interests or Rights Act (S.C. 2013, c. 20); Nisga’a Final Agreement Act, R.S.B.C. 1999 c.2; and Sechelt Indian Band Self-Government Act (S.C. 1986, c. 27).

[65] For example, the legislative body of Nisga’a Lisims Government unanimously passed the Nisga’a Land Title Act, Nisga’a Property Law Act, Nisga’a Law and Equity Act, and the Nisga’a Partition of Property Act.

[66] Napoleon, Gitxsan Democracy, supra note 30.

[67] Gitxsan society is organized in matrilineal kinship groups that own a formal oral history (adaawk) that links the group to its territories and establishes rightful ownership of the land and resources. The adaawk tells of the origins and migrations of the group to its current territories, of explorations and covenants established with the land, and of songs, crests, and names that result from the spiritual connection between the members and their land. Susan Marsden, “Defending the Mouth of the Skeena: Perspectives on Tsimshian Tlingit Relations” in Jerome S. Cybulski, ed., Perspectives on Northern Northwest Coast Prehistory (Hull: Canadian Museum of Civilization, 2001) 61 at 62.

[68] The Gitxsan and Nisga’a are from the Tsimshian linguistic group located on the northcoast of British Columbia. The neighbouring Wet’suwet’en are part of the Athabascan linguistic group, and are located inland, in the north central part of the province. Please note that there are a number of spellings for Wet’suwet’en and Gitxsan.

[69] Stanley Williams (Gwis Gyen) April 19, 1988, B.C.S.C. commissioned evidence transcript, 160 at 167, for Delgamuukw v. The Queen, [1991] B.C.J. No. 525, 79 D.L.R. (4th) 185 [Stanley Williams (Gwis Gyen) 19 April 1988]. According to Fred Johnson (Lelt), a hla gansxw means breaking the law. Fred Johnson (Lelt) 2 September 1986, B.C.S.C. commissioned evidence transcript, 1-39, for Delgamuukw v. The Queen, [1991] B.C.J. No. 525, 79 D.L.R. (4th) 185 [Fred Johnson (Lelt) 2 September 1986].

[70] Stanley Williams (Gwis Gyen) 19 April 1988, supra note 69 at 167.

[71] Solomon Marsden (Xamiaxyetxw) 9 May 1988, B.C.S.C. trial transcript, 5932 at 5938, evidence for Delgamuukw v. The Queen, [1991] B.C.J. No. 525, 79 D.L.R. (4th) 185 [Solomon Marsden (Xamiaxyetxw) 9 May 1988].

[72] Overstall, Property, supra note 43. Overstall explains that “A House’s histories, crests, and territories revolve around one another to recreate the daxgyet [chief’s power] power of the lineages’ original marriage with the land. While a House may possess naxnox spirit powers unconnected with its crest powers, most of its possessions derive their legitimacy from that originating event, including any conflicts and consequences that arise from its responsibility for all human activity on its territory.”

[73] Jeremy Webber, personal communication, June 8, 2020 (archived with the author).

[74] Smithers is located in Wet’suwet’en territories but has a predominately non-Wet’suwet’en population.

[75] Mary McKenzie (Gyoluugyat) 13 May 1987, B.C.S.C. trial transcript, 160 at 248 evidence for Delgamuukw v. The Queen (1991), 79 D.L.R. (4th) 216.

[76] Forsythe v. Collingwood Sales Ltd., [1988] B.C.J. No. 683 [B.C.C.A.].

[77] Ibid.

[78] Michael Asch, John Borrows, and James Tully, Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings (Toronto: University of Toronto Press, 2018) at 3-4.

[79] TRC Summary Report, supra note 5 at 6.

[80] Swenson, supra note 6 at 440.

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