To understand the difference between Aboriginal law vs. Indigenous law in Canada, we need to understand first what the two terms refers to, and how it relates with the legal system of Canada.
What is the Indigenous law in Canada?
In view of Canada’s long history with the Indigenous Peoples and the ongoing recognition of their distinct rights granted to them by the Constitution and the law, comes with the acknowledgement of their own legal system based on their tradition and culture – hence, the legal system categorically termed as Indigenous law or Indigenous Peoples’ law.
What is the difference between Indigenous law vs. Canadian law?
Aboriginal law is the series of laws created by the Canadian government to work indigenous peoples, and indigenous law is the laws that the indigenous have written for themselves.
Canadian laws, as generally understood is made up of federal legislations, common law, and provincial and territorial legislations; whereas Indigenous law is the self-made governing Indigenous Peoples that is based on their cultural history and customary laws.
Indigenous law in Canada
Indigenous law refers to the distinct legal system by the Indigenous Peoples in Canada. This legal system is made up of customary laws and cultural practices which have been developed over time in these Indigenous communities. It is law per se from which rights and legal systems arise to govern the Indigenous Peoples and their communities.
Because of this unique nature of Indigenous law, it may be both “unwritten” laws and “written” laws. It is unwritten when it is passed down from generation to generation through oral tradition and by practice itself; and it is written when these laws and principles have been codified or are put into common law.
Generally, these customary laws govern the relationship between the Indigenous Peoples with each other, and their relationship with nature and the environment.
Customary Indigenous laws may either govern the relationship between individuals, or between an individual and the community they belong to, such as Indigenous laws on family relationships, spiritual beliefs, and codes of conduct. This includes the system of alternative dispute resolution that the Indigenous Peoples have developed over generations of keeping the peace in their communities.
Another known aspect of Indigenous law is its stewardship of ancestral lands, or lands which Indigenous Peoples have acquired native titles for it, and other resources found in it.
Does Canada recognize Indigenous law?
In a long line of court decisions and case law, which makes up Canada’s common law, and even the Constitution itself in Section 35 (1), Canada has recognised the Indigenous law as a separate and distinct law for the self-government of the Indigenous Peoples, including the recognition of their native titles over the ancestral lands and territories and the natural resources found in these lands. This recognition is important to prevent frictions between the common law and Indigenous law, and in the continuing effort to harmonise them.
Hence, as a rule, Indigenous Peoples are subject to the jurisdiction of Canadian laws, from its provincial and municipal laws up to the federal laws, including Canadian common law, unless there has been a treaty, court declaration, or statutory provision of law which grants them a separate and distinct right or treatment under the law. This is to acknowledge that while Indigenous law is a law itself existing in Canada’s jurisdiction, it would still be subject to the legislative laws and common law.
An example of this separate and distinct right or treatment provided by Canadian law is the affirmation of the Aboriginal title, as enunciated in the Supreme Court decision in the case of Tsilhqot’in Nation v. British Columbia, which further states that such Aboriginal title carries with it the right to utilise and manage these lands granted under the said title, and that in evaluating a claim for an Aboriginal title both common law and Indigenous law are to be considered.
What's the difference between Aboriginal law and Indigenous law?
Aboriginal Peoples vs. Indigenous Peoples
The terms “Aboriginal Peoples” and “Indigenous Peoples” are technically two different terms which are mostly used interchangeably, although the commonly accepted perspective is that the two terms are not exclusive and are one of the same things.
“Indigenous Peoples” is the collective term used to refer to the original peoples of North America and their descendants, and the term “Aboriginal peoples” may also be used to refer the same. According to the Constitution, the term “Aboriginal peoples of Canada” refer to three distinct groups – the Indians (or also referred to as First Nations), the Inuit, and the Métis.
Aboriginal Law vs. Indigenous Law
In distinguishing Aboriginal law vs. Indigenous law, it is worthy to note that while “Aboriginal peoples” and “Indigenous peoples” may mean the same, “Aboriginal law” and “Indigenous law” are two different terms, especially in the perspective of the legal system of Canada.
While Indigenous law pertains to the legal systems developed by the Indigenous Peoples governing their communal relationships and the utilisation and management of their lands and its natural resources, Aboriginal law is the body of law that is made by the courts (common law or case law) and by legislature (laws and regulations) which governs the relationship of the Indigenous peoples (or Aboriginal peoples) and the Crown (or the state, or the government).
Generally, Aboriginal law vs. Indigenous law may be differentiated by its (1) enactment and (2) its applicability.
(1) Enactment
An Aboriginal law is enacted through the usual legislative process in crafting and creating laws. It may also be pronounced by the courts through its judicial decisions, hence, becoming part of the common law. It is found in previous legislations governing Indigenous Peoples, such as the Royal Proclamation of 1763, the Indian Act, and even the Constitution itself.
On the other hand, Indigenous law is “enacted” or is instituted by the very traditional and cultural use of a practice or “law” over the generations, which then becomes a customary law among the Indigenous Peoples. The “formal” recognition of Indigenous law is thus anchored on the traditions and cultures themselves and is wholly dependent on the actual practice of Indigenous Peoples.
(2) Enforceability
While Indigenous law is generally “enforceable” or applies only among the Indigenous Peoples, it thus affects those which are not members of the Indigenous groups and even the state or the government when it is translated into a treaty, a court declaration (common law), or as a statutory provision in a law. Here, it becomes part of Aboriginal law and is enforceable against those who the law explicitly states, such as in its applicability clauses.
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