Indigenous and Settler Legal Systems

 The implementation of modern treaties requires more research in support of improved practices and outcomes. The SSHRC funded Modern Treaty Implementation Research: Strengthening Our Shared Future, a Partnership Grant with the Land Claims Agreement Coalition (Partnership Grant), is aimed at funding research that helps document implementation issues and guide new and better strategies for implementation. Research on the role of Indigenous law and its intersection with state law in the implementation of modern treaties is part of this research agenda.

The interaction of Indigenous law and legal actors with state law and institutions is a daily lived reality in treaty communities. Research that produces greater access to and reliance on Indigenous law in modern treaty contexts will serve treaty communities’ aspirations for self-determination and well-being, and also potentially mitigate asymmetries that persist between the colonial state and Indigenous peoples in modern treaty contexts. However, this research is not without its challenges; the asymmetries that persist in the treaty environment, and that had a part in shaping the treaties themselves, render Indigenous traditions vulnerable to further erosion or distortion in these contexts. Research aimed at the application of Indigenous law within treaty contexts and with regard to its continual engagements with the state must be cautious to avoid harming treaty communities and relationships.

Research supporting a resurgence of Indigenous law is flourishing. However, the challenge of anticipating the implementation of such laws through treaty and/or Indigenous governance structures is a newer endeavour. Is implementation research distinctive from existing research on Indigenous law? Is implementation research in the modern treaty context distinctive from issues relating to the relationship between state law and Indigenous law and knowledge more generally? If so, how is it different? And how do these differences relate to the approach taken to research, and/or the subjects of research? More generally, what are the different approaches and issues arising in the course of Indigenous law research that can be applied in the context of modern treaty implementation?

These questions, among others, were the impetus for a workshop at the University of Victoria, September 21-22, 2018. The workshop was held to foster discussion and support research work to be carried out under the Partnership Grant in the future. Our aim was to develop a better understanding of how Indigenous law can contribute to improvements in treaty implementation for Indigenous parties, to identify principles and guidance for this research, and to identify potential limitations of proposed research programs. The workshop also aimed to situate the intended research relative to the growing body of Indigenous law research in Canada.

We (Kim Stanton and Janna Promislow, Co-Leads on the theme of Indigenous and Settler Legal Systems within the Partnership Grant) are grateful to the Indigenous Law Research Unit (ILRU) for their enthusiastic support and hosting of the workshop. Thanks are owed to Val Napoleon, Jessica Asch, and Simon Owen for their thoughtful contributions to the program and organizational support, and to Ruth Young (Manager, Indigenous Initiatives, University of Victoria Faculty of Law) for her excellent logistical 4 advice and help. We also would like to thank our student note-takers: David Gill (PhD Candidate, University of Victoria, Faculty of Law, who also was lead rapporteur in developing this report), Brittany Rousseau (JD student, Thompson Rivers University, Faculty of Law and assistant editor of this report), Liam McGuigan (ILRU Co-op and JD student, University of Victoria, Faculty of Law), and Christina Gray (LLM Candidate, University of Victoria, Faculty of Law). Last, but certainly not least, thanks to Genevieve Harrison (Administrator, Carleton Centre for Community Innovation, Carleton University) for her smooth and efficient administrative support.