Framing Aboriginal Title as the (Mis)recognition of Indigenous Law

By Moulton, Matthew V. W. | University of New Brunswick Law Journal, January 2016 | Go to article overview

Framing Aboriginal Title as the (Mis)recognition of Indigenous Law


Moulton, Matthew V. W., University of New Brunswick Law Journal


ABSTRACT

This paper makes the case that current Canadian political and legal frameworks are unable to fully recognize the inherent plurality in law, which includes Indigenous versions of law. In making this argument, the author uses the doctrine of Aboriginal title as a means to illustrate the conceptual and ideological hurdles that obstruct full recognition and Indigenous law. Some scholars call for the incorporation of Indigenous legal concepts within the common law, what is generally known as a weak form of legal pluralism. This paper discusses the internal limits of this weak form of legal pluralism, demonstrating the perversity of forms of recognition that force Indigenous claims through institutions that perpetuate their subjugation, as well as the ideological conscripts of Canadian legal institutions and discourse that continue the erasure of Indigenous law and organic Indigenous legal meaning. To do so, this paper illustrates the conceptual and ideological hurdles of a weak form of legal pluralism through the (mis)use of Indigenous law within the Aboriginal title paradigm. Given that the (mis)recognition of Indigenous law acts as a site for the reconstruction of colonialism, this paper argues instead for a transformative approach that respects Indigenous agency. In so doing, it argues that in order to fully respect and lay the foundations for the reconciliation of Indigenous legal orders, a strong legal pluralist model must be incorporated that decenters state law as law par excellence.

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Man is human only to the extent to which he tries to impose his existence on another man in order to be recognized by him. As long as he has not been effectively recognized by the other, that other will remain the theme of his actions. It is on that other being, on recognition by that other being, that his own human worth and reality depend. It is that other being in whom the meaning of his life is condensed.

--Frantz Fanon, Black Skin, White Masks (1)

I. INTRODUCTION

The epigraph offered above is illustrative of the recognition project within contemporary political and legal theory. Recognition is largely the organizing ethos of equality-seeking groups in current political struggles. Such groups aspire to be recognized in some formal sense by those holding political and social power. In this way, as the above passage demonstrates, "justice" for equality-seeking groups requires recognition of their equal worth, and this recognition is constitutive of group members' sense of self. This demonstrates the importance of recognition as a political act. History is rife with such struggles for equal worth, including those of feminists, sexual minorities, and cultural minorities. As such, in a normative sense, recognition imports a positive acknowledgement of an other as an equal; the marginalized have been transformed into equals by the actions of those who hold power. However, while debates over recognition spur interesting propositions about politics and social movements, given the title of this paper the reader may be wondering what this has to do with law, or, more specifically, Indigenous law.

The connection lies in legal pluralism. From a theoretical perspective, legal pluralism seeks to recognize the existence of two or more legal regimes operating within one geographical sphere. (2) In this paper, I seek to examine the relationship between two legal orders: Canadian state law and Indigenous law. (3) Specifically, I aim to analyze how Indigenous law can co-exist with Canadian law given that a recurring theme in the relationship between these two legal orders is the tension and miscommunication that often arises from Canadian state law's colonial and imperial claims of domination. (4) This tension reveals the struggle for Indigenous law to be recognized on a level with state law where neither is subjugated to, or dominated by, the other.

Given the tension that often exists between Indigenous and Canadian law, some scholars argue that Indigenous law must be incorporated into broader common law structures. …

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