A theory of common law incorporation of indigenous legal systems and the origin and nature of common law indigenous rights

Abstract

We give equal respect to a culture when we allow it to govern itself by its own legal system, and when this legal system is accorded equal status. The continuation of Indigenous legal systems is not related to the manner in which the Crown expanded its territories, rather, it comes from a concern for equality of citizenship and protection of difference. If not, our constitutions currently accept the inequality of Indigenous Peoples. Having decided to accord equal respect to the Indigenous legal system, we must then have the means to do so. This respect comes in the form of enforceable common law indigenous rights. Since courts cannot enquire into what is important to another culture these rights must give effect to this culture's laws and legal system rather than vague and difficult concepts like occupation. The existence and content of common law indigenous rights to resources and jurisdiction are proven where the Indigenous legal system attributes itself ownership or jurisdiction. These rights are then subject to any Crown extinguishment. In addition, they extend to cultural property and jurisdiction, areas previously thought covered only by unenforceable treaties. Where Indigenous interests must co-exist with non-Indigenous interests the common law right is not protected in its original state. New rights exist, defined in relation to the competing non-Indigenous interest amid concerns for reconciliation of the opposing cultures and legal systems. Further protection of Indigenous interests is possible in statute or in higher law. In these cases reconciliation with non-Indigenous interests will change the description of the indigenous right in that statute or higher law. Extinguishment occurs where Indigenous interests are inconsistent with Crown rights or interests, and is not permanent. The revival of indigenous rights after extinguishment is important to the acknowledgment of the value of ongoing Indigenous existence. Finally, compensation for loss of these rights is available by operation of the common law.