The Rule of Law within a Legally Plural Society
July 30, 2025
BY Llana Arreza
In R v Cavanaugh, 2025 BCCA 252 (Cavanaugh), the BC Court of Appeal (BCCA) touches on a number of important legal issues. An earlier post on this blog summarized parts of the case that deal with using the court’s contempt power to punish the breach an injunction in a resource dispute. This post focuses on how the case builds on a developing body of case law in which courts are faced with reconciling the rule of law with the application of Indigenous laws.
Emerging Themes and Principles
In Canada, courts can be seen to engage with Indigenous laws using two broad approaches. The first, arises in the context of claims based on section 35 of the Constitution Act, 1982where Indigenous law is often introduced as evidence to prove the existence of an Aboriginal right – as in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 and Delgamuukw v British Columbia, [1997] 2 SCR 1010. Within this approach, Indigenous law may be received by Canadian courts as evidence that informs the development of principles recognized within Canadian constitutional law.
The second, involves litigants invoking Indigenous law not as evidence, but as pointing to a parallel legal order that applies to the same issues that are before the court. Within this approach, the continually developing body of law reflects an openness on the part of courts to considering the applicability of parallel Indigenous legal orders so long as doing so does not run afoul of the rule of law.
Some other principles that appear to be reflected in this area of law are:
- There are no spaces in which laws simply do not apply,
- There are circumstances where Indigenous law could apply in a parallel and complementary way with Canadian law, and
- There are conceivably circumstances where Indigenous law could displace the application of Canadian law where it can be shown to serve an equivalent purpose in application to the specific facts before the court.
No Lawless Spaces
This principle centres around preserving the rule of law, which is the proposition that everyone is subject to and accountable under the law. In Cavanaugh, the BCCA touched on this principle, noting it “is well-established that, in the absence of a treaty, Indigenous persons are generally subject to the laws of Canada”. The BCCA also highlighted that there are other procedures for challenging the validity of laws, including court orders, in a way that preserves the rule of law.
Parallel and Complementary Legal Orders
In some circumstances, more than one system of law can be applied without conflict between the legal systems. In S.R.L. v J.K.T., 2014 BCSC 2562, for example, the BC Supreme Court and the Shakopee Mdewakanton Sioux (Dakota) Community Tribal Court both determined that they had parallel jurisdiction in relation to family law matters involving the same parties. The two courts communicated with each other to jointly decide each court’s jurisdiction over specific family law matters including divorce, property division, and support obligations. Ultimately, joint hearings were held – within which the BC Supreme Court had jurisdiction over issues concerning children (such as parental roles and times, guardianship, and child support) and the Dakota Community Tribal Court had jurisdiction over spousal support, divorce, and property division.
In Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10, the Supreme Court of Canada considered the application of Vuntut Gwitchin First Nation law and the Canadian Constitution. The Court determined that both systems of law could be applied within a framework that allows for Indigenous laws to grow and be shaped within the broader framework of Canadian constitutional law.
Displacement of Law
In the cases of Cavanaugh and R v Cliffe, 2022 BCCA 305 (Cliffe), individual litigants argued that parallel systems of law operate so as to displace the application of a Canadian law. These cases demonstrate the type of evidence that is necessary in advancing an argument that the application of another system of law does not violate the rule of law. In particular, information regarding the specific applicable law and its relationship to the issues before the court. This likely involves participation at some level of the First Nation whose laws are being invoked.
In Cliffe, the appellant argued that criminal consequences had already been imposed on him for the impugned conduct in accordance with the laws of a First Nation. In the case, the BCCA noted that in order to consider whether the laws of the First Nation might occupy the same space as the laws applicable under Canadian law, they required more information on the nature of the Nation’s proceedings and the legal basis behind the consequences imposed on the appellant.
In Cavanaugh, the BCCA granted intervener status to the Elected Chiefs of Tk’emlúps te Secwépemc so they could provide the Court with information about the relationship between Indigenous laws and the impugned conduct. Based on the Chiefs’ responses, the Court concluded there was not a sufficient connection between the litigants’ conduct and a specific Indigenous law to which the litigants were bound, such that the application of Canadian law might be impacted. One of the Court’s concerns here appears to be that displacing the application of Canadian law, as the litigants requested, in the absence of a parallel law to which the litigants were bound and which could apply in an equivalent way to the conduct at issue, would undermine the rule of law.
