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Situating Postmodern Legal Pluralism As a Framework to Reconstruct the Relationship Between Indigenous and Canadian Law

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Situating Postmodern Legal Pluralism As a Framework to Reconstruct the Relationship Between Indigenous and Canadian Law Beyond Sui Generis: Situating Postmodern Legal Pluralism as a Framework to Reconstruct the Relationship Between Indigenous and Canadian Law by Matthew Victor William Moulton Submitted in partial fulfilment of the requirements for the degree of Master of Laws at Dalhousie University Halifax, Nova Scotia August 2016 © Copyright by Matthew Victor William Moulton, 2016 For my mother, Jeanne Moulton, who taught me how to be strong. ii ABSTRACT vi ACKNOWLEDGEMENTS vii CHAPTER 1: INTRODUCTION 1 1.1 OVERVIEW 1 1.2 FRAMING THE RELATIONSHIP BETWEEN INDIGENOUS LAW AND CANADIAN LAW: COLONIALISM AND THE “ABORIGINAL PERSPECTIVE” 9 1.3 THEORETICAL CONTEXT: LEGAL PLURALISM 19 1.4 METHODOLOGY, VOICE, AND DECOLONIZATION 23 1.4.1 LEGAL THEORY AND DECONSTRUCTION 23 1.4.2 DECOLONIZING METHODOLOGY 29 1.5 OUTLINE 34 CHAPTER 2: OBJECTIFYING LAW – TRACING AND DISMISSING “SOCIAL SCIENTIFIC” OR “EMPIRICAL” LEGAL PLURALISMS 37 2.1 INTRODUCTION 37 2.2 SALLY FALK MOORE AND THE “SEMI-AUTONOMOUS SOCIAL FIELD” 43 2.3 GUNTHER TEUBNER AND THE SYSTEMS THEORY OF LAW 49 2.4 CRITIQUES OF ESSENTIALISM, FORMALISM, AND THE QUEST TO OBJECTIFY THE CONCEPT OF LAW 56 CHAPTER 3: UNTHINKING LAW – TOWARD A POSTMODERN LEGAL PLURALISM 73 3.2 RODERICK MACDONALD: A CRITICAL LEGAL PLURALISM 77 3.2.1 SHIFTING THE FOCUS OF INQUIRY TOWARD LEGAL ACTORS 80 3.2.2 THE IMPORTANCE OF IMPLICIT AND INFERENTIAL BEHAVIOUR IN DEVELOPING LEGAL NORMATIVITY 90 3.3 BRIAN TAMANAHA’S NON-ESSENTIALIST LEGAL PLURALISM 95 3.4 KIRSTEN ANKER AND THE INTERDEPENDENCE OF LEGALITIES 97 iii 3.5 UNPACKING THE CLAIM TO A POSTMODERN LEGAL PLURALISM: FROM THE “MONOPLOIES OF LEGALITY” TO THE “CONTINGENCY OF LEGALITY” 107 3.5.1 BARRIERS TO POSTMODERN THINKING: RESPONDING TO CULTURAL FRAGMENTATION 120 3.6 THEMES OF A POSTMODERN LEGAL PLURALISM 129 3.6.1 THEME 1: LAW HAS NO ESSENTIAL CHARACTERISTICS 130 3.6.2 THEME 2: LEGAL ACTORS CONSTRUCT LEGAL NORMATIVITY 139 3.6.3 THEME 3: LEGALITIES ARE ULTIMATELY INTERDEPENDENT AND OFTEN INTERACT IN DISCURSIVE PATTERNS 148 3.6.4 THEME 4: STATE LAW’S MONOPOLY IS A SOCIO-HISTORICAL PRODUCT OF MODERNITY 152 CHAPTER 4: IMPLICATING DECONSTRUCTIONIST PRAXIS – DECENTERING THE DOMINANCE OF STATE LAW 155 4.1 INTRODUCTION TO DECONSTRUCTION 155 4.2 WHY DECONSTRUCTION? VIOLENCE AND CULTURAL IMPERIALISM159 4.3 PLURALISM AS DECONSTRUCTIONIST PRAXIS: ELIMINATING “COGNITIVE IMPRISIONMENT” 178 CHAPTER 5: ENTANGLED WEBS – TOWARD INTERCULTURAL PROCESSES 185 5.1 OUR MUTUAL ENTANGLEMENT 185 5.2 TRANSLATION 191 5.3 NEGOTIATION 200 5.4 TRANSLATING INDIGENOUS LEGAL OBLIGATIONS OVER LAND AND NEGOTIATING THE BOUNDARIES OF LAND-BASED DISPUTES 208 5.4.1 COGNIZING LAND-BASED DISPUTES 208 5.4.2 MI’KMAQ LEGAL OBLIGATIONS: UNDERSTANDING NETUKULIMK 213 5.4.3 USING LAND-BASED DISPUTES TO UNTHINK THE RELATIONSHIP BETWEEN INDIGENOUS AND CANADIAN LAW 217 iv CHAPTER 6: CONCLUSION 230 BIBLIOGRAPHY 235 v This thesis examines the relationship between Indigenous and Canadian law at points of interaction, including, for example, in the litigation context. In doing so, it draws on the theory of legal pluralism in order to advance a normative framework through which to reexamine how institutional settings view and acknowledge legal normativity. In doing so, this thesis draws on legal pluralist scholarship in challenging the nature and function of legal centralism which delegitimizes and invisibilizes the normative authority of Indigenous law. The purpose of challenging this received wisdom about “law,” which largely stems from Western jurisprudence, is to facilitate intercultural conversations which aim to respect the organic sources of, and local knowledge inherent within, various iterations of Indigenous law. In undertaking a legal pluralist methodology, this thesis surveys, and then subsequently rejects, “social scientific” legal pluralisms. It is argued that these versions of legal pluralism essentialize the concept of law, which tends to ignore the cross-cultural complexity of different conceptions of law. As such, this thesis rejects “social scientific” legal pluralisms, and proceeds to build on the insights of critical legal pluralists in fashioning a postmodern version of legal pluralism. This version of legal pluralism, I argue, allows more more nuanced understandings of localized and contingent legalities, including Indigenous law. It argues for an analytical approach which resists external conceptualizations of legal normativity, instead focusing the inquiry inward on the legal actors participating in various normative spaces. Moreover, it draws on the insights of postmodernism in rejecting that there can be any “truth” or “universality” to law, and argues that modern law’s claims to universality produce a monist and unidimensional version of legal normativity. Given these claims, this thesis proceeds to illustrate the violence inherent in state law, arguing that such a state of affairs delegitimizes and marginalizes Indigenous law and the worldviews from which it is drawn. Deconstructive methods are employed to help illustrate the flawed ideological presuppositions underlying state domination. Finally, given the postmodern legal pluralism that I develop in this thesis, I move on to think about how such a framework could be implemented in the context of land- based disputes. I look to processes of translation and negotiation as spaces to rethink legal process in arguing for a more decolonized approach to the intercultural conversation between Indigenous and Canadian law. vi This project has been greatly influenced by a large number of people. While my name appears on it, it is the product of a great number of people who contributed in different ways. As such, I wish to take the time to offer what little thanks I can for the tremendous amount of support I have received in the course of writing this thesis. To my supervisor, Professor Constance Macintosh, I owe many thanks. She was able to control my unruly mind and channel it into a readable thesis project. Without her intuitions and keen intellect, this project would not have taken form. Similarly, I would like to thank Professor Richard Devlin for taking on the role of second reader. His insights have undoubtedly refined my thinking and made the final product better. Whether he realizes it, he had an immense influence over my academic journey, and I owe a great gratitude to him for his listening ear, challenging insights, and providing me with the tools necessary to complete this thesis. Thank you to the many people at Dalhousie who have made this journey an intellectually enriching one. In Dalhousie a student finds an an astute community of scholars that are supportive and challenging, and who offer an excellent environment for a graduate student to learn and grow. I owe thanks to many others within the faculty who have also been keen to support me, including Professors Leonard Rotman, Sheila Wildeman, and Jamie Baxter. If only all graduate students could be so lucky. Moreover, I owe gratitude to my LL.M. cohorts for providing me with the motivation to excel. You all set the bar high, and it lit a fire under me to meet your standards. Special thanks to Joshua Shaw – an excellent scholar and a great friend. I will always cherish our lunchtime discussions about our projects, and the time and friendship you have given means the world to me. A graduate program is a lonely journey, but I found in you a kindred soul. Best of luck in what I am sure will be an amazing academic career. To my parents, Glenn Moulton and Jeanne Moulton, I owe the world. While they may not have understood what I was doing or why I was doing it, they supported and encouraged me anyway. My parents also instilled in me an impeccable work ethic, and I am forever humbled for your life’s work. I have have taken a bit of an incongruous path toward “adulthood,” but you have given me the strength to keep on. Thanks also to the many friends who checked in on me, kept me sane, and just called to chat. Jack Townsend, Scott Campbell, Keith White, Megan Sheppard, Catherine Torraville, and Cody Silliker are particularly notable in this regard. Thank you to the partners at my law firm, Benson Buffett, for allowing me a leave of absence to complete this project. Also, a huge thank you to the Nova Scotia Law Foundation and the Schulich School of Law for helping to fund my graduate studies. Reflecting on this journey after 10 months, I do not know how I managed to complete this project. Yet, it is done. And I am proud. vii Canadian governments and churches and others sought to erase from the face of the earth the culture and history of many great and proud peoples. This is the very essence of Colonialism, leaving in its path the pain and despair felt by thousands of Indigenous people today. Justice Murray Sinclair, Chair of the Truth and Reconciliation Commission of Canada1 This story does not have an end. It goes on and on and on. When I am done telling this one, I can tell you another one and another one and another one and another one. I want to know and I want to believe that it makes a difference. That what I have struggled with will make a difference to my son and to his children and to those who come after. We have an obligation to those children to see that there is something here for them, but I am scared that that is not happening and it is not happening fast enough and that it is not happening quick enough. How many hundreds and hundreds of years have we been doing this? And when is it going to stop? Tonight these questions are just too big and too hard and I am too alone. Patricia Monture2 Justice Sinclair’s poignant words offered in the epigraph above demonstrate Canada’s legacy of indifference and subjugation of its Indigenous peoples.
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