The Importance of Recognition of Customary Aboriginal Laws
Customary laws were implicit guidelines developed from examples or tacit models of conduct, rooted in spiritual force, similar to instinct in the animal world and as natural as gravity to modern science. These guidelines were captured in oral traditions and rituals, and the shared hardships and joys of living. Mikmaq customary law produced a matrix of processes which provided guidelines in broad outline, not precise detail. But its standards neither were universal, objective nor enforced by man-made institutions. Initiating the customary process was a family responsibility, remedy was a clan function. (1)
It is clear that “the family” in aboriginal discourse signifies not only the household and smaller circle of immediate kin, but also, as it did in traditional times, a broader caring community that acts as a bridge or mediator between individuals and the world at large. (2)
Authorities on customary law in societies outside Canada have given some advantages on customary law which were: 1) Flexibility and adaptability as conditions and values of the people change; 2) Embodies and reflects the unique knowledge traditions of the people concerned (systems of organizing and conveying information and understanding of the world) and; 3) Relies on an esteemed and valued role of elders in transmitting knowledge and values. (1)
The problem with the recognition of customary law relating to marriage and the disputes over possession of the matrimonial home or other matrimonial real property was that it was framed in terms of private property rights that have been introduced into the reserve community from the outside and were often imposed through the dynamics of colonialism. Another challenge for any effort to genuinely respect and recognize Aboriginal customary law was that it was not a system law based on lists of jurisdictional powers but rather, was a flexible, dynamic and holistic knowledge system. In addition, a discussion of lawmaking authority over “division of matrimonial property” presumed a certain conception of property and notions of private individual ownership that were often not consistent with the customary law and values of most first nations. Aboriginal law and Aboriginal customary marriages have not yet achieved a status equal to federal and provincial laws in the area of matrimonial real property. (2) There is a limited amount of legal commentary and case law on the recognition of Aboriginal customary marriages. On the whole, Canadian law has accepted the validity of Aboriginal marriage by custom where the necessary elements such as validity in the community, voluntariness, exclusivity, and permanence existed. (3)
The recognition of the government on the aboriginal customary laws will preserve the traditions, practices and the identity of the aborigines. It will give them the right to freedom of religion and the right to non-discrimination on grounds of religion and ethnicity, the right to enjoy one’s culture and the right to respect for one’s private and family life.
But because customary laws in some areas relating to family have been pre-empted by the federal and provincial laws, and because of the central importance of family and family relationships, it is likely that aboriginal people will want to have their own laws in place as soon as possible. (2)
1. Indian and Northern Affairs Canada. Aboriginal customary law. 2004 Apr 23 [cited 2006 Dec 7]. Available from: URL:http://www.ainc-inac.gc.ca/pr/pub/matr/acl_e.html.
2. Indian and Northern Affairs Canada. Rcap family law recommendations. 2004 Apr 23 [cited 2006 Dec 7]. Available from: URL:http://www.ainc-inac.gc.ca/pr/pub/matr/rcapflr_e.html.
3. Indian and Northern Affairs Canada. Customary marriages. 2004 Apr 23 [cited 2006 Dec 7]. Available from: URL:http://www.ainc-inac.gc.ca/pr/pub/matr/cm_e.html.