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Customary Law in the Aboriginal Legislation of the Russian Federation and Canada (Comparative Legal Analysis)
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Customary Law in the Aboriginal Legislation of the Russian Federation and Canada (Comparative Legal Analysis)
Abstract
PII
S1991-32220000622-3-1
DOI
10.61205/jzsp.2023.073
Publication type
Article
Status
Published
Authors
Katarina Zakharova 
Occupation: Senior Referent, State Legal Department, State Assembly (Il Tumen) of the Republic of Sakha (Yakutia)
Affiliation: Institute of Legislation and Comparative Law under the Government of the Russian Federation
Address: Moscow, Russia
Edition
Volume 19 No. 5
Pages
128-137
Abstract

The granting of constitutional and legal status to the indigenous peoples of Russia and Canada led to the formation of aboriginal legislation, in which a certain place belongs to the customary law of these peoples. The Canadian experience of involving customary law in aboriginal legislation and its role in protecting the rights of indigenous peoples differs from the Russian aboriginal legislation and is not only of scientific, but also of practical interest.

The purpose of the study is to compare the degree of influence of customary law in the process of protecting the rights of indigenous peoples. For this purpose, an analysis and comparison of the law enforcement practice established in Russia and Canada, as well as an analysis of the Canadian approach to customary law and its consequences are carried out.

The methodological basis of the study consists of comparative legal, logical, systematic and formal legal methods.

The results of the study. Inconsistent law enforcement practice has developed in the Russian Federation. The condition of non-contradiction of the custom to the legislation, as well as the absence of a mechanism for reviewing customs in order to make a decision on the possibility of taking it into account, led to the fact that the provisions on the accounting of customs are not fully applied. The Canadian version of building relations with indigenous peoples, based on the recognition of customary law, its role in establishing the rights of indigenous peoples, led to the development of a kind of “translation” of customary law into modern legal terminology, namely into constitutionally enshrined “existing aboriginal and contractual rights”. This approach allows us to consider customary law and the rights of indigenous peoples as a whole and does not subdivide the rights of indigenous peoples into rights with and without customary law.

Keywords
customary law, customs, traditions and practices, indigenous peoples of the Russian Federation, indigenous peoples of Canada, aboriginal laws
Date of publication
26.10.2023
Number of purchasers
10
Views
71
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0.0 (0 votes)
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References



Additional sources and materials

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