The Re-emergence of Indigenous Legal Principles in Education

By Jimena Taquire

The Canadian legal system is traditionally viewed as bijural, consisting of common law and civil law traditions (Government of Canada, 2024). However, the evolving recognition of Indigenous legal principles effectively transforms Canada’s constitutional and legal landscape into a trijural framework, where Indigenous laws form a distinct and vital third system (Government of Canada, 2021). This emergence creates both profound opportunities and tensions within various domains, including education.

Tensions Between Reemerging Indigenous Legal Principles and Settler Legal Frameworks in Education

 The nature of common and civil law systems derived from European settler legal traditions, creating a tension that stems primarily from differing worldviews, methodologies, and historical contexts embedded in Indigenous law as compared to settler legal frameworks. Settler legal systems, rooted in European settler legal traditions, continue to dominate Canadian law, marginalizing Indigenous law and governance. Canadian law is shaped by assumptions of Indigenous political and legal inferiority, resting on unilateral Crown sovereignty claims that overlook Indigenous peoples’ pre-existing governance structures . This dominance creates barriers for the integration and understanding of Indigenous legal traditions in educational contexts, where settler laws shape curricula and institutional priorities (Borrows, 2022).

In education, this tension manifests as the challenge of integrating Indigenous ways of knowing, being, and doing within institutional structures originally built on settler legal and epistemological frameworks. For example, curriculum development, pedagogy, and governance in education systems often reflect colonial norms and priorities, marginalizing Indigenous perspectives. The diversity of Indigenous languages, laws, and legal traditions, as highlighted by Professor Lindsay Borrows’ teaching approach that incorporates 12 Indigenous language families and over 60 languages, further complicates standardized educational frameworks that must reflect these traditions authentically rather than homogenize them (Witten, 2023).

Borrows (2022) claims that studying Indigenous law within Canadian universities encounter a dual challenge; students should learn Indigenous legal traditions in the shadow of settler law, which often fails to fully recognize or incorporate Indigenous perspectives. However, Indigenous legal education initiatives, such as the University of Victoria’s JID/JD dual degree program, seek to disrupt these conventions by teaching Indigenous law alongside common law in a trans-systemic approach, which means integrating and comparing multiple legal traditions from Indigenous law alongside settler laws such as the common law and civil law. 

Ambiguity and Uncertainty in Legal Reconciliation The re-emergence of Indigenous law exposes ambiguities and inconsistencies within Canadian legal frameworks, prompting deeper legal and societal reflection. Yet, the large scale of this work, addressing life’s fundamental questions and the structure of the state, often leads to uncertainty and the possibility of setbacks . Canadian legislatures and courts currently lack sufficient knowledge of Indigenous law, compounding difficulties for its meaningful inclusion. Students and scholars play a crucial role in illuminating these gaps and challenging the status quo (Borrows, 2022).

Reflection on the Re-emergence of Indigenous Legal Principles in Education

The revitalization of Indigenous legal principles in education is transformative and essential for reconciliation and true recognition of Indigenous self-determination. Education is not only a learning setting but also a site of cultural transmission and identity affirmation. Re-emerging Indigenous legal traditions, whether through narrative methods, land-based law camps, or embedding Indigenous governance and environmental law in curricula, restore agency and continuity for Indigenous communities (Witten, 2023). 

Immersive, land-based learning experiences foster a relational understanding of law that includes obligations to land, community, and future generations, contrasting with abstract, rights-oriented settler legal education. Such Indigenous pedagogy promotes respect for Indigenous sovereignty and legal pluralism, challenging settler institutions to evolve beyond colonial frameworks (Witten, 2023). In this sense, students come to recognize law not merely as a set of rules or state mechanisms but as a living practice deeply embedded in relationships, responsibilities, and values that sustain communities and the environment (Borrows, 2022).

The re-emergence also compels legal education to confront its European settler legal traditions and roots, and adapt to Indigenous legal realities. This involves building genuine relationships with Indigenous communities, respecting distinct legal traditions, and supporting Indigenous curriculum innovations. It also requires non-Indigenous learners and educators to embrace humility and openness to Indigenous ways of knowing (Witten, 2023). Moreover, it also points to the necessity for ongoing dialogue, humility, and willingness to meet Indigenous legal traditions on their terms, rather than subsuming them under Canadian legal precepts (Borrows, 2022).

Conclusion

In conclusion, the re-emergence of Indigenous legal principles within education presents a constructive tension that challenges and enriches Canada’s legal framework and educational landscapes. Recognizing a trijural framework fosters pluralism that can accommodate the diversity of Indigenous legal traditions, empowering Indigenous peoples through law and education. The journey requires sustained commitment to equity, respect, and cross-cultural understanding but promises profound reconciliation and revitalization of Indigenous legal orders in Canadian society.

References

Borrows, J. (2022). Making meaning: Indigenous legal education and student action. McGill Law Journal / Revue de droit de McGill, 67(4), 493–520. https://doi.org/10.7202/1098594ar 
Government of Canada. (2021, September 1). Principles respecting the Government of Canada’s relationship with Indigenous peoples. Department of Justice Canada. https://www.justice.gc.ca/eng/csj-sjc/principles-principes.html
Government of Canada. (2024, June 10). The fundamentals of bijuralism. Department of Justice Canada. https://www.justice.gc.ca/eng/csj-sjc/harmonization/services_information/fundamentals-fondements.html 
Queen’s University Faculty of Law (2023, January 6). Indigenous law and legal traditions: Finding new Canadian context. Queen’s Law. https://law.queensu.ca/news/Indigenous-law-and-legal-traditions-finding-new-Canadian-context



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