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Where is the Indigenous law in state based transitional justice processes?

University of British Columbia

This paper discusses the impact of state engagement with Indigenous legal orders through transitional justice mechanisms such as the Canadian Truth and Reconciliation Commission. My aim is to contribute to an understanding of the potential implications of the power imbalances caused by settler colonialism on interactions between state and Indigenous legal systems. This thesis builds on the Fanonian theorization of culture under settler colonialism by extending his analysis to Indigenous legal systems impacted by settler colonialism. In the case of the Canadian Truth and Reconciliation Commission, the inclusion of Indigenous legal traditions in the Commission’s work has failed to create space for Indigenous law as a set of viable alternatives to state law. Instead, longstanding settler depictions of Indigenous law as static and primitive are reinforced and the dominant position of state law in relation to Indigenous law is reinscribed in the collective settler imagination. Rather than create space for an Indigenous legal resurgence that would strengthen the legal authority of Indigenous law, the Commission’s engagement with Indigenous law ultimately served to affirm the supremacy of state law over Indigenous law and erase those aspects of Indigenous law that might prove threatening to the established settler colonial state.

Text

2017-05-03

Attribution-NonCommercial-NoDerivatives 4.0 International

http://hdl.handle.net/2429/61471

Political Science

University of British Columbia

UBCV

http://creativecommons.org/licenses/by-nc-nd/4.0/