Canadian Aboriginal law

Canadian Aboriginal law is the body of law of Canada that concerns a variety of issues related to Indigenous peoples in Canada.^[1] Canadian Aboriginal Law is different from Canadian Indigenous law: In Canada, Indigenous Law refers to the legal traditions, customs, and practices of Indigenous peoples and groups.^[2][3] Aboriginal peoples as a collective noun^[4] is a specific term of art used in legal documents, including the Constitution Act, 1982, and includes First Nations, Inuit and Métis people.^[5][6] Canadian Aboriginal law provides certain constitutionally recognized rights to land and traditional practices. Canadian Aboriginal Law enforces and interprets certain treaties between the Crown and Indigenous people, and manages much of their interaction.^[7] A major area of Aboriginal law involves the duty to consult and accommodate.

Sources

Aboriginal law

Aboriginal law is based on a variety of written and unwritten legal sources. The Royal Proclamation of 1763 is the foundation document creating special land rights for Indigenous peoples within Canada (which was called "Quebec" in 1763).

Section 91(24) of the Constitution Act, 1867 gives the federal parliament exclusive power to legislate in matters related to "Indians, and Lands reserved for the Indians".^[8] Under this power, that legislative body has enacted the Indian Act, First Nations Land Management Act,^[9] Indian Oil and Gas Act,^[10] Department of Crown-Indigenous Relations and Northern Affairs Act^[11] and the Department of Indigenous Services Act.^[12][13]

Part II of the Constitution Act, 1982, recognizes Aboriginal treaty and land rights, with section 35 being particularly important. Section 35's recognition of Aboriginal rights refers to an ancient source of Aboriginal rights in custom.^[14]

Indigenous law

Further information: Canadian Indigenous law

Canadian Indigenous law refers to Indigenous peoples own legal systems. This includes the laws and legal processes developed by Indigenous groups to govern their relationships, manage their natural resources, and manage conflicts.^[2] Indigenous law is developed from a variety of sources and institutions which differ across legal traditions.^[3]

Indigenous self government

This paragraph is an excerpt from Indigenous self-government in Canada.[edit]

Indigenous or Aboriginal self-government refers to proposals to give governments representing the Indigenous peoples in Canada greater powers of government.^[15] These proposals range from giving Aboriginal governments powers similar to that of local governments in Canada to demands that Indigenous governments be recognized as sovereign, and capable of "nation-to-nation" negotiations as legal equals to the Crown (i.e. the Canadian state), as well as many other variations.^[16]

Treaties

This paragraph is an excerpt from Indigenous peoples in Canada § Treaties.[edit]

The Monarchy of Canada and the Indigenous peoples of Canada began interactions in North America during the European colonization period. The Royal Proclamation of 1763 recognized Indigenous title and the Treaty of Niagara of 1764 bound the Crown and the Indigenous peoples of the Great Lakes basin together in a familial relationship, a relationship that exists to this day, exemplified by First Nations attendance at the coronation of King Charles III.^[17] Post-Confederation Canada adopted a paternalistic approach and imposed an approach as though the nation-to-nation relationship did not exist, administering relations solely under Canadian law.^{[citation needed]}

After Canada's acquisition of Rupert's Land and the North-Western Territory in 1870, the eleven Numbered Treaties were imposed on the First Nations from 1871 to 1921. These treaties are agreements with the Crown administered by Canadian Aboriginal law and overseen by the Minister of Crown–Indigenous Relations.^[18]

Treaty rights would be recognized and incorporated into the 1982 Constitution. Many agreements signed before the Confederation of Canada are recognized in Canadian law, such as the Peace and Friendship Treaties, the Robinson Treaties, the Douglas Treaties, and many others, although many First Nations still have no treaty with the Crown recognizing their title, such as the Mikmaq, the Anishnaabe and several northern British Columbia nations.^{[citation needed]}

Act

This paragraph is an excerpt from Indian Act.[edit]

The Indian Act (French: Loi sur les Indiens) is a Canadian Act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves.^[19][20][a] First passed in 1876 and still in force with amendments, it is the primary document that defines how the Government of Canada interacts with the 614 First Nation bands in Canada and their members. Throughout its long history, the act has been a subject of controversy and has been interpreted in different ways by both Indigenous Canadians and non-Indigenous Canadians. The legislation has been amended many times, including "over five major changes" made in 2002.^[22]

The act is very wide-ranging in scope, covering governance, land use, healthcare, education, and more on Indian reserves. Notably, the original Indian Act defines two elements that affect all Indigenous Canadians:

The act was passed because the Crown relates differently to First Nations (historically called "Indians") than to other ethnic groups because of their previous history on the land. When Canada confederated in 1867 the new state inherited legal responsibilities from the colonial periods under France and Great Britain, most notably the Royal Proclamation of 1763 which made it illegal for British subjects to buy land directly from Indian nations, because only the Crown could add land to the British Empire from other sovereign nations through treaties. This led to early treaties between Britain and nations the British still recognized as sovereign, like the "Peace and Friendship Treaties" with the Mi'kmaq and the Upper Canada treaties. During the negotiations around Canadian Confederation, the framers of Canada's constitution wanted the new federal government to inherit Britain's former role in treaty-making and land acquisition, and specifically assigned responsibility for "Indians and lands reserved for Indians" to the federal government (rather than the provinces), by the terms of Section 91(24) of the Constitution Act, 1867. The Indian Act replaced any laws on the topic passed by a local legislature before a province joined Canadian Confederation, creating a definitive national policy.

The act is not a treaty; it is Canada's legal response to the treaties. The act's unilateral nature was imposed on Indigenous peoples after passage by the Canadian government, in contrast to the treaties, which were negotiated. This aspect was resented and resisted by many Indigenous peoples in Canada.

Aboriginal land title in Canada

This paragraph is an excerpt from Aboriginal land title in Canada.[edit]

In Canada, aboriginal title is considered a sui generis interest in land. Aboriginal title has been described this way in order to distinguish it from other proprietary interests, but also due to the fact its characteristics cannot be explained by reference either to only the common law rules of real property, or to only the rules of property found in Indigenous legal systems.^{[23][24][25][26]} The Supreme Court of Canada has characterised the idea that aboriginal title is sui generis as the unifying principle underlying the various dimensions of that title.^[24][27] Aboriginal title is properly construed as neither a real right nor a personal right, despite the fact that it appears to share characteristics of both real and personal rights.^[28] Aboriginal title refers to the concept of a sui generis right in land that originates from the exclusive occupation and use of a specific territory by an aboriginal group over which the group has a native historic attachment.^[28][29]

See also

• The Canadian Crown and Indigenous peoples
• Indian Health Transfer Policy (Canada)
• Numbered Treaties
• Cree law, an example of Indigenous Law
• Jack Woodward
• Settler colonialism in Canada
• Canadian genocide of Indigenous peoples
• Indian hospitals

Notes

1. Indian has been used in keeping with page name guidelines because of the historical nature of the page and the precision of the name similar to Canadian Indian residential school system.^[21] The use of the name also provides relevant context about the era in which the system was established, specifically one in which Indigenous peoples in Canada were homogeneously referred to as Indians rather than by language that distinguishes First Nations, Inuit and Métis peoples.^[21] Use of Indian is limited throughout the page to proper nouns and references to government legislation.

References

1. Hogg, Peter W., Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 631.
2. John Borrows (2006). "Indigenous Legal Traditions in Canada" (PDF). Report for the Law Commission of Canada. Law Foundation Chair in Aboriginal Justice and Governance Faculty of Law, University of Victoria. In Canada, Indigenous legal traditions are separate from but interact with common law and civil law to produce a variety of rights and obligations for Indigenous people....Many Indigenous societies in Canada possess legal traditions. These traditions have indeterminate status in the eyes of many Canadian institutions.
3. Kaufman, Amy. "Research Guides: Aboriginal Law & Indigenous Laws: A note on terms". guides.library.queensu.ca. Indigenous law exists as a source of law apart from the common and civil legal traditions in Canada. Importantly, Indigenous laws also exist apart from Aboriginal law, though these sources of law are interconnected. Aboriginal law is a body of law, made by the courts and legislatures, that largely deals with the unique constitutional rights of Aboriginal peoples and the relationship between Aboriginal peoples and the Crown. Aboriginal law is largely found in colonial instruments (such as the Royal Proclamation of 1763, the Constitution Acts of 1867 and 1982 and the Indian Act) and court decisions, but also includes sources of Indigenous law. "Indigenous law consists of legal orders which are rooted in Indigenous societies themselves. It arises from communities and First Nation groups across the country, such as Nuu Chah Nulth, Haida, Coast Salish, Tsimshian, Heiltsuk, and may include relationships to the land, the spirit world, creation stories, customs, processes of deliberation and persuasion, codes of conduct, rules, teachings and axioms for living and governing.
4. "Indigenous or Aboriginal: Which is correct?". September 21, 2016. Archived from the original on September 22, 2016. Retrieved November 19, 2020.
5. McKay, Celeste (April 2015). "Briefing Note on Terminology". University of Manitoba. Archived from the original on October 25, 2016. Retrieved 2 July 2020.
6. "Native American, First Nations or Aboriginal? | Druide". www.druide.com. Retrieved May 19, 2017.
7. Campagnolo, Iona (13 January 2005). "Kyuquot First Nation Community Reception: Remarks by Lieutenant Governor Iona Campagnolo". Office of the Lieutenant Governor of British Columbia. Victoria: Queen's Printer for British Columbia. Archived from the original on 2007-09-27. Retrieved 29 September 2009.
8. Smith, David E. (1999). The Republican Option in Canada. Toronto, Buffalo, London: University of Toronto Press. p. 16. ISBN 0-8020-4469-7. monarchy canada.
9. First Nations Land Management Act (S.C. 1999, c. 24).
10. Indian Oil and Gas Act (R.S.C., 1985, c. I-7).
11. Department of Crown-Indigenous Relations and Northern Affairs Act (S.C. 2019, c. 29, s. 337)
12. Department of Indigenous Services Act (S.C. 2019, c. 29, s. 336).
13. Elkins, David J. (May 1999). "Any Lessons for Us in Australia's Debate?" (PDF). Policy Options. p. 23. Archived from the original (PDF) on 2007-10-27. Retrieved 10 February 2009.
14. "Constitution Act, 1982 Canadian Charter of Rights and Freedoms". Department of Justice. Government of Canada. 1982. Archived from the original on 2005-12-04. Retrieved 2009-09-18.
15. "Self-government". www.rcaanc-cirnac.gc.ca. Government of Canada; Crown-Indigenous Relations and Northern Affairs Canada. November 3, 2008.
16. "Indigenous Self-Government in Canada". The Canadian Encyclopedia.
17. Cote & Tidridge 2024, p. 43.
18. Hall, Anthony J. (June 6, 2011). "Treaties with Indigenous Peoples in Canada | The Canadian Encyclopedia". www.thecanadianencyclopedia.ca. Retrieved August 5, 2021.
19. Belanger 2014, p. 117.
20. Belanger 2014, p. 115.
21. "Terminology Guide Research on Aboriginal Heritage" (PDF). library and Archives Canada - University of British Columbia. 2012.
22. John F. Leslie (2002). "The Indian Act: An Historical Perspective". Canadian Parliamentary Review. 25 (2).
23. "Guerin v. The Queen, [1984] 2 SCR 335". Supreme Court of Canada.
24. "Delgamuukw v. British Columbia, [1997] 3 SCR 1010". Supreme Court of Canada.
25. "R. v. Sparrow, [1990] 1 SCR 1075". Supreme Court of Canada.
26. Slattery, Brian (2007-01-01). "THE METAMORPHOSIS OF ABORIGINAL TITLE". The Canadian Bar Review. 85 (2). ISSN 0008-3003.
27. "R. v. Van der Peet, [1996] 2 SCR 507". Supreme Court of Canada.
28. "Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4". Supreme Court of Canada.
29. Allard, France (2012). Private law dictionary and bilingual lexicons. Property. Cowansville, Québec, Canada. ISBN 978-2-89635-731-4. OCLC 806536250.

Bibliography

• Asch, Michael (1998). Aboriginal and treaty rights in Canada : essays on law, equality, and respect for difference. University of British Columbia Press. ISBN 0-7748-0581-1.
• Belanger, Yale D. (2014). Ways of Knowing: An Introduction to Native Studies in Canada. Toronto, ON: Nelson.
• Bell, Catherine; Robert K. Paterson (2009). Protection of First Nations Cultural Heritage: Laws, Policy, and Reform. UBC Press. ISBN 978-0-7748-1463-8.
• Bell, Catherine; Val Napoleon (2008). First Nations Cultural Heritage and Law: Case Studies, Voices, and Perspectives. UBC Press. ISBN 978-0-7748-1461-4.
• Borrows, John (2002). Recovering Canada: the resurgence of Indigenous law. University of Toronto Press. ISBN 0-8020-3679-1.
• Cote, Philip; Tidridge, Nathan (2024). "Ties of Kinship". Canada's History. No. October-November 2024.
• Dupuis, Renée (2002). Justice for Canada's Aboriginal peoples. James Lorimer and Company. ISBN 1-55028-775-3.
• Gibson, Gordon (2009). A New Look at Canadian Indian Policy: Respect the Collective - Promote the Individual. Vancouver: Fraser Institute. ISBN 978-0-88975-243-6.
• Woodward Q.C., Jack (1989–2016). Native Law. Carswell. ISBN 0-459-33271-6.

External links

• A Brief Introduction to Aboriginal Law in Canada (Bill Henderson Barrister & Solicitor)
• A Guide to Canadian Indigenous Law (Jack Woodward, Q.C. Lawyer and Author)
• The Native Law Centre of Canada Archived 2019-11-21 at the Wayback Machine (University of Saskatchewan)