Indigenous legal traditions and Canadian Bhinneka Tunggal Ika: Indonesian lessons for legal pluralism in Canada Kenji Tokawa Pages 17-40 | Received 30 Oct 2014. Click here.
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Indigenous legal traditions and Canadian Bhinneka Tunggal Ika: Indonesian lessons for legal pluralism in Canada
Bhinneka Tunggal Ika is a popular Indonesian phrase meaning “unity in diversity.” Through comparing Canadian and Indonesian approaches to conceptualizing and administering legal pluralism vis-à-vis indigenous peoples, the paper uses this concept to recommend direction for the administration of justice in Canada. The areas of comparison are the three main barriers to instituting a robust legal pluralism in Canada – legitimacy, dependency, and implementation. Where Asian and particularly Indonesian philosophies of legal pluralism create an atmosphere that legitimates legal pluralism's role as a nation-building tool, North American philosophies exacerbate an already adversarial and hierarchical relationship between multiple coexisting legal orders. While these divergent ways of framing legal pluralism have not resulted in large differences for these countries in terms of legislating to reconcile the existence of indigenous legal orders with those of the state, they have affected the way indigenous peoples and state citizens actually practice such coexistence. In general, current Indonesian practices founded on the idea of regionalism and bhinneka tunggal ika (unity in diversity) offer more opportunities for indigenous legal traditions to function. In contrast, Canadian practices founded on the centralization of power and the dominance of state legal order over indigenous ones hinder such opportunities. Ironically, the origins of the Canadian legal system and the creation of the nation were dependent on and shaped significantly by indigenous and non-indigenous societies' early respect for each other's legal orders – as treaties and early Canadian jurisprudence show. This paper advocates for a return to that respect in the interest of Canadian nation-building.
Acknowledgements
Much thanks to Professor Larry Chartrand for inspiring and supervising this research and assisting in its preparation for publication, and the Faculty of Common Law, University of Ottawa, for providing an opportunity to undertake directed research work credited toward my Juris Doctor, Teresa Chun Wen Cheng for the motivation and support, and the various scholars and practitioners upon whose work I've based this research.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. To distinguish the legal doctrinal concept of legal pluralism from the phenomenon of legal pluralism, I will refer to the former as “Legal Pluralism” and the latter as “legal pluralism”.
2. The US federal government entered into negotiations with these kinds of groups during the depression and created regulatory boards to oversee the cooperative projects between each other. One of which was the National Recovery Administration, although it was held unconstitutional in 1935 (Mitchell 2007, 2).
3. Felix Cohen was a Jewish-American assistant solicitor with the US Department of the Interior who was first assigned to draft the Indian Reorganization Act, 1935, 25 USC 461. What is interesting about history's characterization of Cohen as a legal pluralist is that he believed that he could draft a law, applicable universally that could “accommodate the interests and needs of Indian nations”. His ideas focused on incorporating certain indigenous conceptions of property into American law (Mitchell 2007, 4).
4. In this section, I use Masaji Chiba's theory of Japanese legal culture as a framework for understanding Legal Pluralism. Granted, a theory of Japanese legal culture is not in and of itself representative of all Asian countries’ Legal Pluralism. Still, this theory compliments how legal pluralism operates in some East and Southeast Asian nations, while at the same time contrasting against North American legal pluralism theory . Another more central reason I have limited my focus to Chiba's work is that it is one of the few resources I have found written from an Asian perspective in English – the only language in which I am literate. I regret that my reliance on Chiba perpetuates a certain cultural and academic hierarchy.
5. Napoleon (2007, 7–8) advocates that laws come from our worldviews and function to make our social interaction meaningful and predictable. This is regardless of whether these laws are centralized or decentralized, written, oral, or implicitly understood.
6. However, this transplanted law is still contrasted with “indigenous law” which is framed as “law that originates in the native culture of a people”, and so the two terms rely on each other for definition.
7. For example, Erh-Soon Tay (1997) recounts that Islamic marriage laws that prohibited marriage between a Muslim and non-Muslim, and marriage between cousins was respected by the CCP. Additionally, the wearing of special clothes and ornaments, certain ceremonies, and social manners were also respected.
8. However, in issues concerning trade, the Dutch East India Trading Company issued laws that applied to the Asian inhabitants of the archipelago as well.
9. Article 1 of Taiwan's civil code allows for custom to resolve cases where no civil law is applicable. However, custom is not applicable to criminal or procedural law and is circumscribed by specific criteria set out in the civil code, such that custom must “not [be] contrary to public order and good morals”, and must be supported by a “general conviction that the custom is law” (Wang 1997, 145).
10. Bakker (2009, 204) notes various views of what adat is: colonial governments under the period of Dutch rule saw adat as valid law to govern the private affairs of the native population, independence saw adat take on a more symbolic role, while currently, local groups advocate that adat is the source of rights.
11. However, Himawan (1997, 212) notes that cases were not merely presided over by two judges, but accompanied by others. The text is unclear about how many others and whether they had a religious affiliation.
12. Macklem's (1991) definition of workable self-government speaks to the legal pluralism inherent in recognizing indigenous self-government in Canada. He says that self-government “at least refers to the need for a territorial base of native land, some forms of administrative and political structures and institutions for the airing of native voices and political decision-making, the transfer of jurisdictional responsibilities from Parliament to native people, the ability of native people to organize their societies and pass laws governing their lives free from federal or provincial interference, and access to sufficient fiscal resources to meet these responsibilities” (389).
13. Section 18.6 of the AIP recognizes that the Inuvialuit government may enter into agreements on policing with the territory. Yet the GNWT has no legislation to regulate policing and instead contracts those services out to the RCMP (Irlbacher-Fox 2008).
14. AMAN is one of the most influential centralized indigenous representative bodies (Bedner and Stijn van Huis 2008, 169).
15. Yet many lay outside of the reach of Dutch adat formalization, often in remote, still forested areas with little access to roads (Li 2001).
16. Notably, the two criteria conflict because of the nature of colonial formalization.
17. However, the policy has not been adopted by the Federal government.
18. The First Nations Policing Policy (1991) and the First Nations Policing Program (1992) allowed First Nations to enter into agreements with provincial and federal governments to administer policing services to their communities (Clairmont 2013, 175).
19. Included in an RCMP detachment in indigenous communities is a policy advisory committee, school programs countering drug abuse delivered in collaboration with community committees, and collaboration with a band-funded crime prevention worker. (Clairmont 2013, 179–180).
20. State opposition has gone beyond rejection to overt aggression against the implementation of certain indigenous legal traditions. The Canadian militarization at Kanesatake/Oka demonstrated the Canadian government's willingness to enforce its jurisdiction over Indigenous jurisdiction through military action (McNeil 1993, 100, note 14). The Federal government maintains that it is not opposed to the implementation of Indigenous legal orders. The Penner Report, a 1983 federal policy paper which followed the establishment of Section 35, identified aboriginal self-government as in need of constitutional recognition. However, in the Meech Lake Accord failed because it neglected to incorporate this thrust. Although it was eventually incorporated into the Charlottetown Accord, the accord was defeated in the 26 October 1992 referendum (McNeil 1993, 97–98).
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