Adjudication in Many Forms: Legal Pluralism in Practice
On the diverse ways Indigenous Peoples apply their laws to resolve conflicts
By Megan Vis-Dunbar, BCLI Staff Lawyer
Adjudication and dispute resolution are central to the application of law, and the procedures by which they occur can differ across legal orders. A recent BC Law Institute publication, Navigating Shared Waters: A Study Paper on Indigenous-Led Conflict Resolution, explores the role of conflict resolution within various legal orders. It highlights some of the diverse ways Indigenous Peoples are applying their laws to resolve conflicts and identifies opportunities for Canadian legal systems to provide stronger support for these processes, which operate alongside Crown approaches to adjudication.
The Indigenous-led approaches highlighted in the paper show that applying Indigenous laws to conflict resolution is not necessarily about replicating historical practices nor mirroring the methods of Canadian courts and tribunals. Rather, these approaches demonstrate how Indigenous legal orders continue to evolve, addressing present day conflicts in ways consistent with Indigenous legal principles. While the processes may differ across legal orders, they fulfill a purpose equivalent to that of Canadian adjudicative systems: resolving modern day disputes and conflicts affecting Indigenous communities in accordance with Indigenous laws and legal principles.
Canadian governments have acknowledged that supporting Indigenous justice systems and institutions—consistent with the right to self-determination—is essential to addressing the harms caused by the historical and ongoing prioritization of Canadian laws over Indigenous laws. Both the federal Indigenous Justice Strategy and the BC First Nations Justice Strategy share a commitment to advancing self-determination through the implementation and strengthening of Indigenous laws and justice systems. However, the important role of Indigenous-led conflict resolution is often overshadowed in Crown legal systems, where attention tends to focus narrowly on compliance with Canadian legal norms and where coordination across jurisdictions and agencies is limited.
Meeting the goals of both the national and provincial justice strategies will require cooperation with self-determining Indigenous Nations. It will also require adaptations on the part of the Canadian legal system and Crown agencies. Navigating Shared Waters looks at ways the Canadian legal system could work in relationship with Indigenous legal orders to support effective implementation of the justice strategies’ goals.
In Canada and internationally, there are valuable examples of how state frameworks can create space for the application of Indigenous laws—whether orally transmitted or written—by respecting their diversity, providing enforcement support where needed, and by recognizing that all laws need room and resources to evolve and respond to life’s complexities.
Canada’s own experience with legal pluralism, together with lessons from other states, shows that we have tools at our disposal to support the application of Indigenous laws in conflict resolution. Achieving the goals of the justice strategies is possible through thoughtful modifications and adaptations within Crown systems. Doing so will depend on collaboration across jurisdictions and agencies, and on funding models that place Indigenous-led approaches on equal footing with Crown processes.
With this paper, BCLI aims to identify and illuminate pathways for supporting conflict resolution approaches as they are developed and implemented by Indigenous Nations in accordance with their own laws.
A copy of Navigating Shared Waters can be downloaded at bcli.org
