3.1.3. Justice Recognizes Indigenous Law

For many Indigenous people in Canada, Indigenous laws and legal orders are the law and have been since time immemorial [15–17]. Some examples and specifics of these laws include the property and sovereignty laws discussed below. For jurisprudential scholars, and those for whom there is only one official version of the law, laws require recognition by courts and legislatures. However, for legal pluralists, a 'living law' or the set of rules that are actually followed by individuals in social life is recognized, which may be very different than the official version of the law [4]. For example, in reconciling water interests in times of drought in the prairie provinces, priority practices diverge from legal water rights [18]. This living law is important in conceptualizing the multiple levels of legal governance existing in a country like Canada, and also for advancing legal reform that recognizes and empowers Indigenous people, as well as their law and customs. In 2019 Miller wrote of experiencing 'shock' when attending law school and learning of the European 'doctrine of discovery' (which was at one time law in Canada), whereby the state owned all land legally vacant upon discovery (because in European law, Indigenous people were not recognized as occupants) [16]. Now the doctrine of discovery has long since been set aside and Indigenous laws recognized, through the advocacy of Indigenous peoples and lawyers [15,19,20].

Legal pluralism recognizes more than one legal system in the same social field [21], such as the concurrent recognition of the federal, state, or provincial and local or municipal law; while each has a separate jurisdiction (although local or municipal systems derive authority from the province) in matters of land, property, or water, each jurisdiction plays a role [22]. Similarly, formal state-run systems of courts and judges co-exist with normative orders established by social rules of groups and communities [21]. In Canada this is reflected by the Canadian civil and common law system whereby French civil and English common law co-exist in Quebec. This precedent exists and allows space for Indigenous culturally specific values, norms, and laws to also exist [15]. For Indigenous scholars, and for me personally, Indigenous laws move beyond pluralism to parallel expressions of self-determination, overlapping with often incommensurable claims to those of the Canadian State [23]. In the words of James Sakej Youngblood Henderson [24]:

The task of Indigenous peoples is to encourage diversity as the prime assumption of legal systems, and to resist any false universality, despite the consequences of existing legal theory (49).

In Australia, Indigenous law includes customary law, government law that specifically and only affects Indigenous people and the relationship between Indigenous people, and customary law and the general common and statue law of Australia [25] (University of Melbourne, 2021). However, in Canada, Indigenous law is defined narrowly as "a source of law apart from the common and civil legal traditions in Canada" [26] (White

2021) or Indigenous people's own legal systems. However, for the purpose of this paper, because Indigenous law and Indigenous onto-epistemologies are the foci for agency and reimagining law, this narrow definition of exclusion is not used, and one more akin to the Australian conception used in this paper. Instead of the narrow Canadian definition, a vision of Indigenous law that is 'braided' is my preference:

The braiding of Indigenous law with international and national law is thus a unique undertaking that helps us to reconceive the very idea of law. As suggested, Indigenous Peoples' law questions the claims of both international and national laws to universality and supremacy. Law can be multidirectional in sources and applications. It might be created by clans, flow from experiences with glaciers or rivers, or be sourced in custom and grassroots practices, as well as being created by legislatures, courts and executive authorities [27].
