Indigenous Inuit Law, 'Western' Law and Northern Issues

• Author: Natalia Loukacheva
• Pages: 52-69

200

[start kap]

Indigenous Inuit Law, “Western” Law

and Northern Issues

Natalia Loukacheva

Dr. of Juridical Science, Research Associate, Munk School of Global Affairs, University

of Toronto, Canada. E-mail: n.loukacheva@utoronto.c a

Received October 2011, accepted March 2012

Abstract: e magnitude of rapid changes occurring i n the Arctic have gener-

ated a fur ther inquiry on the role of law and ex isting legal systems i n meeting

the many challenges that Northerners, A rctic indigenous peoples and their

communities are facing today. On the one ha nd, we deal with the pluralism of

legal orders across the Circumpolar Region which ca n be valuable to nding

innovative solutions for ex isting issues, and it can be of learning signi cance

to dierent Arctic jurisd ictions. On the other hand, the dominating inuence

of national legal systems and legal procedures on the regulation of internal and

local aairs of the Arctic sub-national entities and their communities raises

the question of t he role of indigenous legal traditions and practices in various

Northern issues and developments. By looking mainly at the example of the

Inuit of Canada’s Eastern and Centra l Arctic (Nunavut), to understand the

Inuit law-ways, at t he outset, this essay examines some genera l features of the

traditional Inuit legal order. Further, by exploring some principles and aspects

that dene linkages and interactions between indigenous legal pract ices and

“Western” law in the Arctic, it raises questions t hat are essential to our better

understanding of the value of indigenous law in contemporary issues and de-

velopments in the North.

Keywords: Indigenous law, Inuit law, legal pluralism, the Arctic

Arctic Revie w on Law and Politics, vol. 3 , 2/2012 pp. 200–217. ISSN 1891-6252

indi genous inuit l aw, “wes tern” l aw and nor thern i ssues

201

1. Introduction

Over the years many prominent representatives of the indigenous and academic

community, anthropologists, sociologists, ethnographers and jurists have looked

at the core dierences and similarities that dene t he essence of indigenous law

and “Western”1 law in various geographic settings and periods of time. eir

ndings have led to dierent conclusions and f urther development and evolu-

tion of several disciplines in the social sciences. us, the foundations of legal

ethnography, legal ethnology, and legal anthropology gradually formed the basis

of the sociology of law/law and society studies; criminology/alternative dispute

resolution or informal justice studies; legal pluralism and comparative legal sys-

tems’ studies;2 and indigenous law as such, with a broad system of approaches to

its interpretation and understanding by various authorities.

3

e development

of indigenous law in the Arctic has in ma ny ways been similar to and followed

what has been established in ot her geographic areas but, at the same time, it has

its unique features and innovations. By looking mainly at the example of the Inuit

1. By “Western” law I mean Euro-centric or State law; basically it is the dominant/national legal

system of the country in question. Views and suggestions expressed in this paper are based on

author’s own perceptions and analysis as an outsider and do not necessarily reect the positions

of any particular government or indigenous group.

2. ere is extensive literature on this subject. For the most recent review see: Jonnette Watson

Hamilton and Nigel Bankes, “Living together on the land: A review of the literature on the

property relations of settler and indigenous societies,” 2012, sections on transitional justice and

legal pluralism. On legal pluralism across borders see: Peer Zumbansen, “Transnational Legal

Pluralism,” Transnational Legal eory, Vol. 1(2), 2010:141–189.

3. See, for example, John Borrows, Recovering Canada: e Resurgence of Indigenous Law, Toronto:

University of Toronto Press, 2002; John Borrows, Canada’s Indigenous Constitution, University

of Toronto Press, 2010; Mattias Åhrén, “Indigenous Peoples’ Culture, Customs and Traditions

and Customary Law – e Saami People’s Perspective,” Arizona Journal of International and

Comparative Law, Vol. 21(1) 2004: 63–112; Elina Helander, “e Nature of Saami Customary

Law,” in Timo Koivurova, Tanja Joona and Reija Shnoro. (eds.), Arctic Governance, Rovaniemi:

Juridica Lapponica 29, 2004: 88–96; John Bennett and Susan Rowley (eds.), Uqalurait: An Oral

History ofNunavut, Montreal-Kingston: McGill-Queen’s University Press, 2004; Mattias Åhrén,

“e Saami Convention,” point 4.2.4 “Further on the right to self-determination; particularly

on the Saami people’s customary legal thinking and norms,” in GÁLDU ČÁLA – Journal of

Indigenous Peoples, Vol. 3, 2007: 8–39, at 18–19; James Anaya, “Indigenous Law and Its Con-

tribution to Global Pluralism,” Indigenous Law Journal, Vol. 6 (1), 2007: 3–12; Øyvind Ravna,

“Śami Legal Culture – and its Place in Norwegian Law,” in Jørn Øyrehagen Sunde and Knut

Einar Skodvin (eds.), Rendezvous of European Legal Cultures, B ergen: Fagbokforlaget, 2010:

149–165. On customary law in general see, for example, Jeremy Webber, “e Grammar of

Customary Law,” McGill Law Journal, Vol. 54, 2009:579–626; Jens Dahl &Geneviève Rose (eds.),

Development and Customary Law, Indigenous Aairs, Vols.1–2, 2010.