8 UC Irvine L. Rev. 207 (2018)
Individual Choice of Law for Indigenous People in Canada: Reconciling Legal Pluralism with Human Rights

handle is hein.journals/ucirvlre8 and id is 215 raw text is: 










  Individual Choice of Law for Indigenous

      People in Canada: Reconciling Legal

           Pluralism with Human Rights?



                               Ghislain  Otis*


In tro d u ctio n .....................................................................................................................2 0 7
I. Choice of Law as a Diffusionist Colonial Tool......................................................210
II. The Protection of Human Rights as a New Justification for Individual
       Choice    ....................................................214
III. Indigenous Governance, Choice of Law, and Human  Rights in Canada.......216
C o n clu sio n ........................................................................................................................2 2 5




                               INTRODUCTION


     When   two or more  legal systems occupy the same social space, individuals
often find themselves at the intersection of a plurality of normative regimes among
which they may be able to choose to regulate a given relationship or situation. If the
interaction between the legal systems is formally organized in a way that recognizes
a substantial degree of legal pluralism, the right of individuals to decide to which
law  they wish to submit-the   law of  sub-state groups or state law-may   be
recognized and, as a consequence, enforceable by competent state institutions.
     Individual choice, however, may occur even when  it is not validated by the
official law. For example, indigenous customary adoptions are still officially ignored
in eight of the ten Canadian provinces.' Yet it has been found that a substantial



* Ph.D., FRSC, Professor of Law, Canada Research Chair on Legal Diversity and Indigenous Peoples,
University of Ottawa. This research was undertaken, in part, thanks to funding from the Canada
Research Chairs Program. The author also wishes to thank the UC Irvine Law Review and Professor
Janine Ubink for inviting him to a most stimulating symposium on legal pluralism held at UCI on
August 26, 2017. This paper is a revised version of the draft presented at the symposium.
    1.  See Cindy L. Baldassi, The Legal Status of Aborginal Customary Adoption Across Canada:
Comparisons, Contrasts, and Convergences, 39 U.B.C.L. REv. 63 (2006). For a collection of essays on
customary adoption, see L'ADOPTION COUTUMIEtRE ET LES DI-FIS DU PLURALISME JURIDIQUE
(Ghislain Otis ed., 2013).


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