Canadian Aboriginal law

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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[edit]

Aboriginal law[edit]

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[edit]

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[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[edit]

The Canadian Crown and Indigenous peoples began interactions during the European colonization period. 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. After Canada's acquisition of Rupert's Land and the North-Western Territory in 1870, the eleven Numbered treaties were signed between First Nations and the Crown 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.[17]

In 1973, Canada re-started signing new treaties and agreements with Indigenous peoples to address their land claims. The first modern treaty implemented under the new framework was the James Bay and Northern Quebec Agreement in 1970. The Nunavut Land Claims Agreement of 1993 lead to the creation of the Inuit-majority territory of Nunavut later that decade. The Canadian Crown continues to sign new treaties with Indigenous peoples, notably though the British Columbia Treaty Process.[18]

According to the First Nations–Federal Crown Political Accord, "cooperation will be a cornerstone for partnership between Canada and First Nations, wherein Canada is the short-form reference to Her Majesty the Queen in Right of Canada.[19] The Supreme Court of Canada argued that treaties "served to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights."[19] First Nations interpreted agreements covered in treaty 8 to last "as long as the sun shines, grass grows and rivers flow."[20] However, the Canadian government has frequently breached the Crown's treaty obligations over the years, and tries to address these issues by negotiating specific land claim.[21]

Act[edit]

The Indian Act (Loi sur les Indiens, long name An Act to amend and consolidate the laws respecting Indians)[22] is a Canadian act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves.[23][24] 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.[25]

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:

It says how reserves and bands can operate. The act sets out rules for governing Indian reserves, defines how bands can be created, and defines the powers of "band councils". Bands do not have to have reserve lands to operate under the act.[26]
It defines who is, and who is not, recognized as an "Indian"; that is, who has Indian status. The act defines types of Indian persons who are not recognized as "registered" or "status" Indians, who are therefore denied membership in bands.[26] In mixed marriage (between someone with Indian status and someone without it), the status of each partner and their children resolved on patrilineal terms. From a postmodern perspective, the act is now viewed as having historically discriminated against women, their claim to status and being registered under the same terms as men. For example, women marrying a non-Indian lost their Indian status, but men who married non-Indians did not lose Indian status. (This was amended in the late 20th century.)
The act was passed because the state related differently to First Nations (historically called "Indians") as compared to other ethnic groups. The nation of Canada inherited legal arrangements from the colonial periods under France and Great Britain, such as the Royal Proclamation of 1763 and various treaties. Because of the Indian nations' sovereign status in the colonial periods, Canada's constitution specifically assigns Indigenous issues to the federal, rather than provincial, governments, 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. However, as the governor general mentioned when the act was passed on April 12, 1876, many of its provisions were suggested by the Indian Councils of the older provinces.[27] Dr. Jones, the Chief of the Mississauga Indians, reported that the measures were generally very highly approved by the Indians, especially those clauses and arrangements relating to the election of chiefs and the gradual enfranchisement of members of the tribes.[28]


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.[29][30][31][32] 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.[30][33] 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.[34] 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.[34][35]

See also[edit]

References[edit]

  1. ^ Hogg, Peter W., Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 631.
  2. ^ a b 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. ^ a b 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. 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. ^ Hall, Anthony J. (6 June 2011). "Treaties with Indigenous Peoples in Canada | The Canadian Encyclopedia". www.thecanadianencyclopedia.ca. Retrieved 2021-08-05.
  18. ^ Crowe, Keith (2 March 2015). "Comprehensive Land Claims: Modern Treaties | The Canadian Encyclopedia". www.thecanadianencyclopedia.ca. Retrieved 2021-08-05.
  19. ^ a b Assembly of First Nations; Elizabeth II (2004). The Indian Act of Canada – Origins: Legislation Concerning Canada's First Peoples. 1. Ottawa: Assembly of First Nations. p. 3. Retrieved January 11, 2015.
  20. ^ "What is Treaty 8?". Canadian Broadcasting Corporation. Archived from the original on August 7, 2004. Retrieved October 5, 2009 – via cbc.ca.
  21. ^ Albers, Gretchen (2 March 2015). "Indigenous Peoples and Specific Claims | The Canadian Encyclopedia". www.thecanadianencyclopedia.ca. Retrieved 2021-08-05.
  22. ^ "Acts of the Parliament of the Dominion of Canada ... third session of the third Parliament, begun and holden at Ottawa, on the tenth day of February, and closed by prorogation on the twelfth day of April, 1876: public general acts". p. 43.
  23. ^ Belanger 2014, p. 117.
  24. ^ Belanger 2014, p. 115.
  25. ^ John F. Leslie (2002). "The Indian Act: An Historical Perspective". Canadian Parliamentary Review. 25 (2).
  26. ^ a b Indian Act, S.C. 1876, c. {{{chapter}}}, as amended by 1880, and 1894, and 1920, and 1927, and 1951, ([{{{link}}} Indian Act] at CanLII)
  27. ^ House of Commons Votes and Proceedings, 3rd Parliament, 3rd Session : 1-46
  28. ^ The Globe and Mail, Notes from the Capital, March 10, 1876
  29. ^ "Guerin v. The Queen, [1984] 2 SCR 335". Supreme Court of Canada.
  30. ^ a b "Delgamuukw v. British Columbia, [1997] 3 SCR 1010". Supreme Court of Canada.
  31. ^ "R. v. Sparrow, [1990] 1 SCR 1075". Supreme Court of Canada.
  32. ^ Slattery, Brian (2007-01-01). "THE METAMORPHOSIS OF ABORIGINAL TITLE". The Canadian Bar Review. 85 (2). ISSN 0008-3003.
  33. ^ "R. v. Van der Peet, [1996] 2 SCR 507". Supreme Court of Canada.
  34. ^ a b "Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4". Supreme Court of Canada.
  35. ^ Allard, France (2012). Private law dictionary and bilingual lexicons. Property. Cowansville, Québec, Canada. ISBN 978-2-89635-731-4. OCLC 806536250.

Bibliography[edit]

External links[edit]