Keith Mack
The relationship between Indigenous Peoples and the Canadian state has been fraught with issues arising from colonisation, disempowerment, and the suppression of Indigenous legal systems. The Canadian Constitution recognises three distinct groups of Indigenous Peoples: Indians (First Nations), Métis, and Inuit. While the Canadian government has committed to upholding the rights of Indigenous Peoples, there are concerns about the power imbalance perpetuated by the implementation of Indigenous law within the existing legal structure. Canadian Aboriginal law, which concerns issues related to Indigenous Peoples, differs from Canadian Indigenous law, which refers to the legal traditions, customs, and practices of Indigenous groups. The interpretation of Indigenous law by Canadian courts has been criticised for being handled by non-Indigenous judges with limited knowledge of Indigenous legal systems. As a result, there have been calls for the Canadian government to acknowledge the role of Indigenous law in the formation and existence of the country and to respect and be accountable to Indigenous laws on Indigenous lands.
| Characteristics | Values |
|---|---|
| Indigenous Peoples in Canada | First Nations, Inuit and Métis people |
| Canadian Constitution Recognizes | Three distinct groups of Indigenous (Aboriginal) peoples |
| Canadian Human Rights Act | Provides anti-discrimination legislation to protect Indigenous Peoples' human rights |
| Section 67 of the Canadian Human Rights Act | Repealed in 2008, allowing First Nations individuals to make complaints of discrimination |
| UN Declaration on the Rights of Indigenous Peoples | Endorsed by Canada, with a commitment to uphold the honour of the Crown in dealings with Indigenous Peoples |
| Indigenous Law in Canada | Refers to Indigenous Peoples' own legal systems, including laws and legal processes to govern relationships and manage lands and resources |
| Aboriginal Law | Created by Canadian courts and legislatures, interpreting Indigenous rights recognized in the Canadian Constitution and other laws |
| Aboriginal Self-Government | Proposals to give Indigenous governments greater powers, ranging from local government-like powers to demands for sovereign recognition |
| Royal Proclamation of 1763 | Recognized Indigenous title and established a familial relationship between the Crown and Indigenous Peoples |
| Indian Act | Unilateral act imposed on Indigenous Peoples, replacing local laws and creating a definitive national policy |
| Indigenous Land Ownership | Rights often abused, with governments and companies appropriating, selling, leasing, or polluting Indigenous lands |
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What You'll Learn
Indigenous law and the Canadian legal system
Canada recognises three distinct groups of Indigenous peoples: Indians (First Nations), Métis, and Inuit. The country's legal system has a complex relationship with Indigenous law, which refers to the legal traditions, customs, and practices of these Indigenous peoples and groups.
Canadian Aboriginal Law
Canadian Aboriginal law is a body of law that addresses various issues related to Indigenous peoples in Canada. It differs from Canadian Indigenous law, as it involves interpreting Indigenous rights recognised in the Canadian Constitution and other laws created by Canadian governments, such as the Indian Act or self-government agreements. This area of law includes defining the nature and scope of Aboriginal and Treaty rights under Section 35 of the Constitution Act, 1982, and the Crown's corresponding obligations.
Aboriginal law is based on various written and unwritten legal sources. It enforces and interprets treaties between the Crown and Indigenous peoples and manages much of their interaction. One of its key aspects is the duty to consult and accommodate.
Indigenous Law
Indigenous law, on the other hand, refers to the legal systems of Indigenous peoples themselves. These laws and legal processes are developed by Indigenous peoples to govern their relationships, manage their lands and waters, and resolve conflicts within and across legal systems.
The UN Declaration on the Rights of Indigenous Peoples
Canada, as a founding member of the United Nations, has endorsed the UN Declaration on the Rights of Indigenous Peoples. This declaration recognises the collective and individual rights necessary for the survival, dignity, and well-being of Indigenous peoples worldwide.
The Canadian government has committed to implementing this declaration through the review of laws and policies, collaborative initiatives, and other actions. This commitment aligns with the recognition that Indigenous nations are self-determining, self-governing, and aspire to be free from marginalisation under instruments like the Indian Act.
Challenges and Concerns
There are challenges in integrating Indigenous law into the existing Canadian legal structure. One concern is the perpetuation of the inherent power imbalance stemming from Canada's history as a colonial state. Canadian courts have yet to fully address issues regarding the Crown's acquisition of sovereignty and jurisdiction over Indigenous Peoples.
Additionally, the interpretation of Indigenous law by non-Indigenous judges with limited knowledge of Indigenous legal systems could further perpetuate the violence of colonisation. There is also a lack of a clear process for resolving disputes between competing legal systems, as seen in the Wet’suwet'en opposition to the Coastal GasLink pipeline and the 1492 Land Back Lane conflict in Ontario.
Recent Developments
In recent years, there has been a resurgence of Indigenous law in Canada, accompanied by a growing demand for recognition and respect for Indigenous rights within Canadian law. Courts are increasingly faced with the task of determining how to recognise and implement Indigenous laws within the Canadian legal system, marking a crucial step towards decolonisation.
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Indigenous land ownership rights
Historically, the British and Canadian authorities recognized the prior claim of Indigenous Peoples to the land, known as Aboriginal title, which was not extinguished by the arrival of Europeans. This recognition sets Canada apart from countries like Australia, where Aboriginal lands were seized and declared vacant without compensation. The Canadian Constitution recognizes three distinct groups of Indigenous Peoples: Indians (First Nations), Métis, and Inuit.
The Indian Act of 1876 officially banned First Nations people from owning land, allowing companies to extract resources from reserve lands. This act, along with other colonial policies and practices, disrupted Indigenous sovereignty and self-governance. In recent years, there has been a resurgence of Indigenous law and a growing demand for the recognition and respect of Indigenous rights within the Canadian legal system.
The Government of Canada has made commitments to uphold the honour of the Crown and act with integrity, good faith, and fairness in its dealings with Indigenous Peoples. This includes recognizing Indigenous title and rights, as well as negotiating and implementing treaties. The UN Declaration on the Rights of Indigenous Peoples, which Canada endorsed, outlines the collective and individual rights necessary for the survival, dignity, and well-being of Indigenous Peoples.
Despite these commitments, there are still concerns about the implementation of Indigenous law within the existing legal structure, the power imbalance between Indigenous Peoples and the Crown, and the interpretation of Indigenous law by non-Indigenous judges. Additionally, there is a lack of open and effective mechanisms for First Nations to address their basic needs for land and nation-to-nation relationships, often forcing them into costly litigation.
Moving forward, it is imperative that Canadian governments acknowledge the role of Indigenous law in the formation and existence of Canada and work towards recognizing and respecting Indigenous rights to land ownership and self-determination.
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Indigenous self-government
Indigenous peoples in Canada have practiced their own forms of government for thousands of years, with systems that reflected their economic, social, and geographic diversity, as well as their cultural practices and spiritual beliefs. However, over time, these systems were eroded by colonial laws, policies, and decisions, such as the Indian Act of 1876, which imposed a colonial governance system on First Nation communities.
The Canadian Constitution recognizes three distinct groups of Indigenous peoples: Indians (referred to as First Nations), Métis, and Inuit. In recent years, there has been a resurgence of Indigenous law in Canada, along with a growing demand for meaningful recognition and respect for Indigenous rights within the Canadian legal system. This includes the right to self-government, which is guaranteed in Section 35 of the Constitution Act of 1982.
The Government of Canada has acknowledged the inherent right of Indigenous peoples to self-government and is working to undo federally imposed systems of governance in favour of Indigenous control. Self-government negotiations are a crucial part of this process, with the understanding that communities have different goals and circumstances, resulting in a variety of self-government models. These negotiations aim to empower Indigenous governments to make their own choices about how to deliver programs and services, protect their culture and language, educate their students, manage their lands, and pursue economic growth.
While Canada recognizes the right to self-government, it is important to note that this does not include sovereignty in the international law sense. Self-government agreements are intended to enhance the participation of Indigenous peoples within the Canadian federation and ensure that their rights are protected under the Canadian Charter of Rights and Freedoms. The government is committed to working collaboratively with Indigenous peoples to support their self-determination and advance meaningful change toward strong and healthy Indigenous communities.
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The Indian Act
The purpose of the Act was to administer Indian affairs in such a way that Indian people would feel compelled to renounce their Indian status and join Canadian "civilization" as full members. This process, called enfranchisement, was optional for men over the age of 21 who could read and write English or French.
In recent years, there has been a resurgence of Indigenous law across Canada, along with a growing demand for meaningful recognition and respect for Indigenous rights under Canadian law. As a result, courts have been increasingly called upon to grapple with the issue of whether and how to recognise and implement Indigenous laws within the Canadian legal system.
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The United Nations Declaration on the Rights of Indigenous Peoples
UNDRIP is underpinned by the recognition of Indigenous peoples' historical grievances, ongoing challenges, and their socio-economic, political, and cultural aspirations. It is the product of generations of advocacy and organising by Indigenous communities to secure international recognition and support for their rights. The declaration sets out a comprehensive framework of minimum standards to ensure the survival, dignity, and well-being of Indigenous peoples globally. It addresses issues such as development, multiculturalism, democracy, and decentralisation, encouraging nations to collaborate with Indigenous peoples to address these global challenges.
In the context of Canada, the implementation of UNDRIP is guided by the United Nations Declaration on the Rights of Indigenous Peoples Act, which received Royal Assent and came into force on June 21, 2021. This legislation affirms the government's commitment to renewing its relationship with Indigenous peoples and interpreting and applying Canadian law in alignment with the declaration. It mandates the Canadian government to work in consultation and cooperation with Indigenous peoples to ensure the country's laws are consistent with UNDRIP.
The Act also requires the development and implementation of an action plan to achieve the declaration's objectives and promote reconciliation, healing, and harmonious relations. This action plan involves engaging with a diverse range of Indigenous groups, including national and regional organisations, rights holders, self-governing nations, and Indigenous women, youth, and 2SLGBTQQIA+ individuals. The Canadian government has expressed its commitment to upholding the honour of the Crown in its dealings with Indigenous peoples, treating them with respect and as full partners in Confederation.
While Canada has taken steps towards implementing UNDRIP, there are still concerns about the ongoing power imbalance perpetuated by the Canadian legal system and the interpretation of Indigenous law by non-Indigenous judges. The recognition and implementation of Indigenous laws within the Canadian legal structure remain complex issues that Canadian courts are grappling with. Nevertheless, the United Nations Declaration on the Rights of Indigenous Peoples Act provides a legislative framework to uphold the human rights of Indigenous peoples and ensure sustained efforts to address historical injustices.
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Frequently asked questions
No, Indigenous Peoples have their own legal systems, which include their own laws, legal processes, traditions, customs, and practices. However, they are also subject to Canadian laws, and the Canadian government has a responsibility to uphold the honour of the Crown and act with integrity, fairness, and good faith in all dealings with Indigenous Peoples.
Canadian Aboriginal Law refers to the body of Canadian law concerning Indigenous Peoples. It includes written and unwritten legal sources and interprets treaties between the Crown and Indigenous Peoples. Canadian Indigenous Law refers to the legal systems of Indigenous Peoples themselves.
The Indian Act is a Canadian law that replaced any pre-existing laws passed by local legislatures concerning Indigenous Peoples. It is a unilateral response to the treaties, which were negotiated. This was resented and resisted by many Indigenous Peoples.
The Royal Proclamation of 1763 is a foundational document that created special land rights for Indigenous Peoples within Canada. It recognised Indigenous title and bound the Crown and the Indigenous Peoples of the Great Lakes basin together in a familial relationship.
The UN Declaration is a statement of the collective and individual rights necessary for the survival, dignity, and well-being of Indigenous Peoples worldwide. Canada, as a founding member of the UN, endorses this declaration.
