Studying Pre-colonial Indigenous Ontologies to Decolonize Law: A Contradiction in Terms? The Example of Indigenous Peoples in Canada

This paper envisages decolonial comparative law as involving both a theoretical dimension and a methodological aspect. Theoretically, this paper views decolonial comparative law as an enterprise of inclusion of non-modern epistemologies into the current definition of law. In this context, the term “epistemologies” covers not only knowledge production processes, but also concepts, cate-gories, as well as worldviews, and more specific rationalities based thereon. Methodologically, the paper assumes that decolonial comparative law requires from the scholar to depart from conven-tional research methods, while acknowledging her positionality and the limits attached thereto. In this regard, the paper endorses the pragmatic approach, which is a Western but unconventional interdisciplinary and critical method that consists in drawing theory from case studies. Within this framework, this paper explores a research question that is at the margin of, and per-haps preliminary to, the comparative study of pre-colonial indigenous laws. It asks when (as in, regarding which issue) such a study is best suited to do decolonial comparative law, and when, to the contrary, it seems inappropriate or insufficient. To answer this question, the paper considers contemporary Indigenous claims in Western settler states, while taking the example and recogniz-ing the specificities of Canada and the Ktunaxa People. Hence, following the pragmatic approach, the paper starts from the consideration of the 2017 Canadian Supreme Court case Ktunaxa v British Columbia, where the Court excluded the object of worship from the scope of protection of freedom of religion, thereby denying the protection of Indigenous sacred sites as an element of the protection of freedom of religion. Then, the paper shows that such case law leads to the non-recognition of Indigenous epistemologies, not only be-cause Indigenous sacred lands have been ancestrally central to Indigenous ontologies, but also because, due to the colonization process, their protection has become a matter of survival for In-digenous Peoples to protect their ontologies. In this regard, the paper argues that the considera-tion of pre-colonial Indigenous ontologies, however useful in many ways, is not sufficient to do decolonial comparative law when the latter is understood as a process of epistemological inclusion of Indigeneity into the contemporary definition of law that would be able to better recognize In-digenous claims.

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