Patrick Macklem (University of Toronto - Faculty of Law) has posted Indigenous Peoples and the Ethos of Legal Pluralism in Canada on SSRN. Here is the abstract:
In a luminous book entitled Shadow Nations, Bruce Duthu reconstructs relations between Indian nations and the United States according to a founding ”ethos of legal pluralism.” In its afterglow, many scholars will be inspired to approach their jurisdictions with a similar objective in mind. Writing from Canada, with its strong ties to legal pluralism in theory if not in practice, Shadow Nations led me to ask the following questions. How receptive is the Canadian constitutional environment to conceiving of Indigenous-Canadian relations in accordance with similar ethos of legal pluralism? Are there institutional and doctrinal openings for such a reconstruction to take root? What forms of structural and political resistance might act as impediments? This chapter offers some preliminary reflections on these questions. It first outlines legal pluralism’s promise in early encounters between Indigenous peoples and colonists in New France and British North America and offer reasons why legal pluralism thus far fails to characterize Indigenous-Canadian relations. It then identifies three developments that could form a foundation for its resurgence. Two are occurring inside Canadian law, looking out to Indigenous legal norms. The third is occurring beyond Canadian law, and is not necessarily looking in to Canadian legal norms. My reflections on these developments provide little more than a foundation from which answers to these questions might flow. But I hope they shed some light on the receptivity of relations between Indigenous peoples and the Canadian state to an ethos of legal pluralism.