Filling the gaps in Indigenous law

Filling the gaps in Indigenous law
  • Sarah A. Sutherland

  • May 29, 2023

We frequently hear about the transformative impact of data-driven technologies, so it’s easy to assume that the task of making legal content available online is done. However, significant gaps remain, particularly concerning Aboriginal and Indigenous law.

It’s important to differentiate between the two concepts. The former refers to common law that primarily applies to Indigenous people, while the latter encompasses the laws developed by Indigenous communities themselves. Although both should ideally be accessible to everyone, this is not always the case, especially when it comes to Indigenous law.

One crucial period of concern spans from 1927 to 1951 when lawyers were prohibited from accepting payment to represent Indigenous individuals. Dr. Amy Swiffen, an associate professor at Concordia University, has recently secured a five-year research grant to investigate this timeframe and uncover any relevant legal activity that transpired at the time.

According to Dr. Swiffen, during the early 20th century, Indigenous groups were increasingly engaged in legal activities before the courts, especially regarding land claims. They also petitioned international bodies like the League of Nations to address violations of colonial treaties. In response to the embarrassment these efforts caused, the federal government suppressed them through statutory intervention.

As a result, there is a scarcity of published case law dating from that period. Dr. Swiffen hypothesizes that legal actions were ongoing during that time. But without legal representation, no appeals were filed, so there were no reported cases. Working with her collaborators, Dr. Swiffen intends to investigate reported case law and delve into historical court records held in provincial archives to identify any assertions of Indigenous rights and how judges responded.

The project will examine evidence and explore Indigenous jurisdiction during that time and later. The research team wants to establish a more comprehensive record of historical law for research and analysis, while providing resources to Indigenous communities to enhance their understanding of their own history with an eye on future litigation.

Professor Swiffen believes the ban on legal representation significantly impacted the development of Canadian constitutional law. “In a way, many people know about the ban, but it’s not been something that anyone has taken up to analyze,” she says. “It’s interesting to imagine where we’d be now if this hadn’t been brought in.”

Conducting historical research into Indigenous laws carries significant implications for the present. However, there are also gaps in accessing laws currently being enacted. First Nations governments possess delegated authority to pass statutes in specific areas. But these laws are often inaccessible and not included in general sources of law on publishing platforms like CanLII. The laws enacted under the First Nations Fiscal Management Act are published in the First Nations Gazette, and other legislation passed by Indigenous governments may be included at the discretion of the First Nation. However, people may not know to look there.

Maggie Wente, a lawyer with Olthuis Kleer Townshend LLP in Toronto, has raised concerns regarding access to Indigenous statutes related to child welfare in particular. While these laws are consulted daily by those working with First Nations governments, they are not easily discoverable as they are not published in the same places as federal, provincial and territorial laws.

Wente argues that publishing them in the same places as other laws makes sense. Doing so would ensure better enforcement and facilitate access for individuals researching the law, whether they’re parties involved in a legal process, lawyers, or the courts.

Furthermore, recognizing the status and authority of Indigenous laws is a significant matter. “These laws are important for individual children and for the legal system,” says Wente. “As a matter of philosophy, it’s important to see them as being equivalent to the laws passed by other governments.”

Many areas of legal research, such as intellectual property law, do not adequately accommodate Indigenous oral traditions. Developing and implementing new methods of publishing and navigating information in collaboration with Indigenous people is necessary to effectively incorporate these materials into legal processes, particularly beyond local communities.

The projects listed above represent only a fraction of the work dedicated to aligning Canadian published law with the needs and rights of Indigenous people. The Federation of Law Societies of Canada, CanLII, the First Nations Gazette, and other organizations are actively working with Indigenous communities to enhance access to legal information to support and reflect their needs and traditions.

This post was originally published in the Canadian Bar Association’s National magazine on May 29, 2023.