For millennia, Indigenous nations have governed their territories according to their own laws, actively managing the land and water to sustain their communities and all beings.
For West Coast lawyers, engaging with and upholding Indigenous law is a key part of what it means to practice law in Canada today. We do so by in our work providing legal and strategic advice to Indigenous nations, and through RELAW – a unique capacity-building program designed to support Indigenous nations in accessing, revitalizing and applying Indigenous law.
This means:
Learning from the stories, the Elders and the land
Like the court cases that law students learn to analyze in law school, the stories of each Indigenous nation teach us about the legal principles that guide its people in caring for the land, air and water. By reading many stories, working with community researchers and learning from Elders and knowledge holders, we provide legal support to nations in developing a summary of legal principles related to environmental governance and stewardship. We are grateful to our partners at the Indigenous Law Research Unit (ILRU) for their permission and guidance in using the ILRU methodology in this work.
Applying the law through inclusive community-based deliberation and engagement
Law is a deliberative process. Through the RELAW project, West Coast supports Indigenous community facilitators in gaining skills and experience guiding community-based dialogue and technical work to apply their laws to pressing environmental issues in their territories. These processes are shaped by the nation’s own legal traditions about how decisions are made and who needs to be involved, as well as best practices in deliberative democracy.
Developing contemporary Indigenous law instruments
West Coast lawyers have many years of experience providing legal drafting support to Indigenous nations in developing declarations, treaties, policies and plans that reflect the decisions they have made in applying their legal principles to environmental issues affecting the territories.
Strategic enforcement
The impacts of colonialism have left Canadian and Indigenous governments with vastly unequal capacity for enforcing their respective laws. The process of revitalizing Indigenous law requires attention to righting this balance in a systemic way, as well as immediate action to safeguard the land, air and water. To this end, West Coast provides legal and strategic support to Indigenous nations to develop and implement innovative enforcement strategies – using litigation, financial pressure (e.g., influencing investors), and the “court of public opinion” to uphold their law – as well as working for reforms to Canadian law.
Negotiating solutions
The leadership shown by Indigenous nations in the campaign to stop the Enbridge Northern Gateway pipelines and tankers project demonstrates that strategic enforcement of Indigenous law can achieve important outcomes. In the case of Northern Gateway, this meant enforcing the Indigenous law ban on the project through the Save the Fraser Declaration. However, in many cases strategic enforcement of Indigenous law results in a further phase of work – negotiations with the Crown to achieve recognition of more complex outcomes such as land use plans or new legislation. Building from our commitment to upholding Indigenous law, West Coast lawyers also draw on our experience with best practices and models from around the world to propose legal solutions that support government-to-government negotiations and law reform.
Top photo: Tsawout First Nation