Framing Aboriginal Title as the (Mis)Recognition of Indigenous Law

Abstract

This paper makes the case that current Canadian political and legal frameworks are unable to fully recognize the inherent plurality in law, which includes Indigenous versions of law. In making this argument, the author uses the doctrine of Aboriginal title as a means to illustrate the conceptual and ideological hurdles that obstruct full recognition and Indigenous law. Some scholars call for the incorporation of Indigenous legal concepts within the common law, what is generally known as a weak form of legal pluralism. This paper discusses the internal limits of this weak form of legal pluralism, demonstrating the perversity of forms of recognition that force Indigenous claims through institutions that perpetuate their subjugation, as well as the ideological conscripts of Canadian legal institutions and discourse that continue the erasure of Indigenous law and organic Indigenous legal meaning. To do so, this paper illustrates the conceptual and ideological hurdles of a weak form of legal pluralism through the (mis)use of Indigenous law within the Aboriginal title paradigm. Given that the (mis)recognition of Indigenous law acts as a site for the reconstruction of colonialism, this paper argues instead for a transformative approach that respects Indigenous agency. In so doing, it argues that in order to fully respect and lay the foundations for the reconciliation of Indigenous legal orders, a strong legal pluralist model must be incorporated that decenters state law as law par excellence.