Indigenous Legal Traditions and Histories of International and Transnational Law in the Pre-Confederation Maritime Provinces

Canada in International Law at 150 and Beyond Paper No. 4

January 26, 2018

Practices of transnational law are central to Canada’s inherited legal traditions. Despite this, the importance of Indigenous legal traditions is often minimized in narratives about the history of “law” in Canada. For much of the post-contact history of present-day Canada, the majority of the land’s inhabitants were subjects not of Canadian, British or “international” law, but of Indigenous law. The early colonial period was characterized by a deep legal pluralism, a pluralism that informs the approach this paper takes to the history of international law in Canada.

This paper investigates the historical relationship between international law and the Canadian state by focusing on how distinct systems of international or transnational law worked alongside each other in the Maritime provinces in the eighteenth century. The history of international law in Canada must be considered in light of the post-Confederation shift away from a legally pluralistic sphere to one dominated by a unilaterally imposed model of “universal” international law.

Part of Series

Canada in International Law at 150 and Beyond/Canada et droit international : 150 ans d’histoire et perspectives d’avenir

Marking 150 years since Confederation provides an opportunity for Canadian international law practitioners and scholars to reflect on Canada’s past, present and future in international law and governance. This series of essays, written in the official language chosen by the authors, that provides a critical perspective on Canada’s past and present in international law, surveys the challenges that lie before us and offers renewed focus for Canada’s pursuit of global justice and the rule of law. The project leaders were Oonagh E. Fitzgerald, director of the International Law Research Program at the Centre for International Governance Innovation (CIGI); Valerie Hughes, CIGI senior fellow, adjunct assistant professor of law at Queen’s University and former director at the World Trade Organization; and Mark Jewett, CIGI senior fellow, counsel to the law firm Bennett Jones, and former general counsel and corporate secretary of the Bank of Canada. The series was published as a book titled Reflections on Canada’s Past, Present and Future in International Law/Réflexions sur le passé, le présent et l’avenir du Canada en matière de droit international in spring 2018.

About the Author

Robert Hamilton is an assistant professor at the University of Calgary Faculty of Law. He holds a B.A. (Hons.) in philosophy from St. Thomas University, a J.D. from the University of New Brunswick Law School and an LL.M. from Osgoode Hall Law School. Robert is a Ph.D. candidate at the University of Victoria Faculty of Law. His dissertation focuses on Aboriginal and treaty rights in Canada’s Maritime provinces, and his research engages law, legal history, and theoretical perspectives on law and history. He has published on Aboriginal land and treaty rights in the Maritime provinces and has presented his research at numerous academic conferences.