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Context and Background
The Aboriginal concept of Nature’s Law differs from the
western concept of natural law understood within the western
legal tradition and the tradition of the French
philosophes.
In the West, natural law is usually
associated, first, with the rhythms and patterns that
scientists have seen in nature and, then, with local codes
and legal understandings that were applied in regional
European communities. Thus, natural law is held to grow out
of the regular patterns of everyday life known and accepted
by everyone in the community.
Aboriginal notions of Nature’s Law have
a much different focus and encompass all of this and more
including:
-
All of
the elements that we would associate with genealogical
relationships
-
Ancestral spirits
-
The
workings of the cosmos
-
The
moral laws expressed in right living
-
The
succession of growing things in nature
-
The
range of senses and sensory perception
-
The
relationships between human beings and plants and animals
and, finally,
-
The
interconnectedness across time, generations, natural
processes and culture.
In other words, Nature’s Law relates to
the principle of integration within society, culture and
cosmos. Thus, it can be seen that Nature's Law enlarges the
meaning of the western concept of natural law within a
larger framework. In essence, everything becomes part of an
ecosystem and is not bounded by western views of what we see
or feel. Aboriginal attitudes towards the law are practical
and, unlike the western legal tradition, it is not based on
a hierarchical system of principles or customary practice.
Nature’s Law is, thus, very contextual and relates to tribal
social organization.
In this introductory section, we will attempt to sketch
out significant differences in the Indigenous understanding
of law. This clearing of the ground will demonstrate that,
while history does help in comprehending Indigenous law (in
this report we use the words "Indigenous" and "Indigenous"
more or less equivalently), for Indigenous peoples that law
was based upon certain intuitions about the cosmos, the
world, animals and humans that we can only designate by our
word "natural," despite its inadequacy. The social devotion
to this "nature" constituted the foundations for Indigenous
law.
The 10 categories of Nature's Laws developed by the
project team are explored as is the case for traditional
Indigenous justice within the laws of Canada.
Understandings Held by Indigenous People
In this introductory section, we will attempt to sketch out
significant differences in the Indigenous understanding of
law. This clearing of the ground will demonstrate that,
while history does help in comprehending Indigenous law (in
this report we use the words "Indigenous" and "Indigenous"
more or less equivalently), for Indigenous peoples that law
was based upon certain intuitions about the cosmos, the
world, animals and humans that we can only designate by our
word "natural," despite its inadequacy. The social devotion
to this "nature" constituted the foundations for Indigenous
law.
"And it is here in the Western Hemisphere that the
knowledge still remains intact. Of how we are to walk in
peace and harmony with the Creation, That knowledge was
here before the strangers came and it is here still."
Art Solomon, "What We Say We Are," in Songs for the
People; Teachings on the Natural Way (1990).
" I have been trying to explain these things
to you for thirty years, but you never asked me the
right questions."
Navaho elder, Son of Many Beads or Bidaga to
anthropologist C. Kluckhohn (circa 1956).
"As I am starting to appreciate, humans have always
been preoccupied with ‘natural law’ and have, on many
occasions, used it to justify the structure of their own
institutions. The Euro-American human appear to be no
exception. It’s just that our definition of that
‘natural law’ seems to be almost exactly opposite to the
definition contained within many Indigenous teachings.
It all depends, much like the issue of hierarchies, on
what lens you wear when you examine that non-human
world."
Canadian Lawyer, Ross, Returning, 77.
Nature’s Law Foundations
Indigenous Peoples have long argued that despite an
absence of formal codes of law among Amerindian tribes, a
larger, comprehensive sense of law did exist, and it shaped
life in much the same way as British Common Law has shaped
legal life in Canada. Together with trans-tribal social
mores, political agreements such as treaties, religious
ritual and myths about the common source of all life, and
the myriad details of everyday responsibility, these
elements point to and affirm the existence of a truly
all-embracing legal consciousness. Indeed, the Cree had a
phrase Kihchi weyasowewin kisipikaskamihk (literally, The
Ultimate, All-over -the-World Law). In the Mohawk language,
too, there was a distinction made between a law that was not
made by humans and human-crafted law. Mohawk historian Rarihokwats notes how the
distinction was expressed:
"… in the 'words "kariwiio" and "kariwiiosta", the former
being literally "the beautiful way" and the other being
"man-made beautiful way". The former is used for the "Great
Law" or natural law, the latter is the word used for
"religion". Natural law is understood by children,
demonstrated without words in nature, and, properly, is the
subject of study and discussion, but not dispute. In this
sense, man-made "Indigenous religions" are deemed to be
suspect because of the human intervention, is not understood
by children, requires words to explain, and prompts many
disputes." (Rarinokwats, 2004)
This sense of law formed the basis of Amerindian society
and provided the common ground for such things as treaties,
hunting ground agreements and social intercourse. As an
important example, they point to the "Great Peace." It was
and is a well-known model for one area of trans-tribal
cooperation—a law that bridged the five tribes of the
Iroquois Confederacy. The Great Peace was and is, they
contend, concrete evidence of the existence of a regime of
law encompassing both local and individual tribes with a
larger sense of ordered behaviour on the cosmological and
natural levels.
They also point to traditional knowledge as proof that
nature and its various forces were understood in their own
"scientific" way, and hence constituted
something like the Western concept of "natural law." As Elder Wayne Roan puts
it:
"And also, there is another thing, it begins with the
first four elements, you know, which God used to create
earth…(it is) relationship. I mean the four things used were
related. That’s why they created earth and why they have the
four seasons. That’s why we have the four forms of life and
the four gifts. Everything is related. From the first blade
of grass to the last tree, there is a lump in that leaf;
there begins an insect, the second form of life. Then, to
the last insect, you know, that is just above an animal.
That’s where it ends."
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