Indigenous Law and the Common Law

5 Pages Posted: 23 Mar 2021

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Date Written: March 2021


Indigenous law does not need to be incorporated into Canadian law by treaty, statute, or judicial pronouncement to be part of the domestic law of Canada. Indigenous law exists and is followed in Indigenous communities. It is living law that predated European colonization and has continued up to the present. However, Canadian judges generally are not familiar with it in the way they are with the common law and civil law. Consequently, when relied upon in court evidence of it has to be presented by the testimony of experts, such as Elders and Indigenous knowledge keepers. This is simply a practical requirement that does not diminish Indigenous law’s status as law.

Suggested Citation

McNeil, Kent, Indigenous Law and the Common Law (March 2021). Osgoode Legal Studies Research Paper , Available at SSRN: or

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3

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