The Aboriginal Law practice area is generally understood to encompass First Nations, Métis and Inuit treaty and other legal rights; comprehensive and specific land and property compensation claims; the duty to consult, treaty claims and interpretation; First Nations self-government; the fiduciary relationship between governments and Indigenous peoples; claims to renewable and non-renewable natural resources; hunting, fishing and trapping rights; government relations; economic development; taxation; and various public policy issues.
The following content will help you get an overview of Canadian Aboriginal law and its necessary components, history, and coverage. You will have a better understanding of what the best Aboriginal law lawyers actually work on, and how their work has evolved over the decades.
Aboriginal law is a body of law which deals with the legal relationship between the Aboriginal peoples and the Crown. It is created by the courts and legislatures, but still operates within the Canadian legal system. The said law also involves the interpretation of legal rights as laid down by the Constitution, laws or statutes, and judicial decisions or interpretations.
It is a distinct set of laws which may intersect with Indigenous law, and as such, has its own differences. A lawyer skilled in Aboriginal law is required due to the complexities of Canada’s relationships with the various Indigenous nations.
It can be said that Aboriginal law is created by the courts through its decisions, and the legislature by enacting statutes, and even as provided by the Constitution itself. However, it is not wrong to also mention that the said set of laws are a result of the generational affirmations of the Indigenous Peoples of their right to self-determination and self-government, especially with the protection, preservation, and utilization of the natural resources.
Aboriginal law is also created, to say, from the internal legal system of governance of the Indigenous Peoples themselves – which is a result of the historical and long-line tradition, social structures, and political norms. Aboriginal law lawyers frequently find themselves working in this area between Aboriginal law and the laws of the Indigenous peoples themselves.
Some sources and samples of Aboriginal law are court jurisprudence, and legal instruments, such as, but are not limited to –
Issued in 1763 by King George III to create special land rights for the Indigenous peoples within Canada, the Royal Proclamation of 1763 is one of the first to recognize the rights of the Aboriginals as to their title, setting forth of their right to self-determination. The Proclamation mainly seeks to delineate as an Indian Reserve the territory west of a line drawn along the Appalachian Mountains, which in effect prohibits all settlements thereto.
Another example would be the Constitution Act, 1867. In Section 91(24) thereof, it provides that federal parliament has the exclusive power to legislate as for matters regarding "Indians, and Lands reserved for the Indians". This constitutional grant of power to the legislative, in turn, was the legislative basis to enact the Indian Act, among other statutes, such as First Nations Land Management Act; the Indian Oil and Gas Act; the Acts establishing the Department of Crown-Indigenous Relations and Northern Affairs Act, and the Department of Indigenous Services Act.
The subsequent charter, Constitution Act, 1982, recognizes three groups of Indigenous Peoples –the Indians (First Nations), the Inuit, and the Métis. In Part II, the charter recognizes the existing Aboriginal and treaty rights; defined the “aboriginal peoples of Canada”; recognized land claims agreements; guaranteed the equality between male and female persons as to the aboriginal and treaty rights; and affirmed the commitment of the government to provide for participation of Aboriginal peoples in constitutional conferences before any amendment is made to Section 91, Class 24 to 25, of Constitution Act, 1867; and, Section 25, and Part II of Constitution Act, 1982.
The Indian Act is the Canadian federal law which consolidated several colonial legislations in 1876. The said act governs the registered Indians, their bands, and the system of Indian reserves. The Act intends to assimilate Aboriginal peoples to the mainstream Canadian legal system and has currently undergone several amendments.
There are also more recent legislations as to protection of the rights of Indigenous Peoples. In 2020, the Act respecting First Nations, Inuit and Métis children, youth and families was legislated. The Act aims to “affirm the rights of First Nations, Inuit and Métis to exercise jurisdiction over child and family services”; and to “establish national principles such as best interests of the child, cultural continuity and substantive equality to guide the interpretation and administration of the Bill.”
Another example of Aboriginal law would be Supreme Court decisions. One of the landmark cases would be R. v. Van der Peet wherein the Supreme Court, during its discussion on how fishing is an Aboriginal right but not its sale, laid down what has been known as the “Van der Peet test” to determine what is considered an Aboriginal right or not. There are also recent developments of Aboriginal law, such as the most recent case of Southwind v. Canada, promulgated in 2021.
Semantically, Indigenous and Aboriginal law may have its differences, but is couched on the same objective – the enforcement of constitutionally protected rights of the Indigenous Peoples.
Aboriginal law, as stated above, governs the relationship between the Crown or the government and the Indigenous Peoples in Canada. The best Aboriginal law lawyers work within this relationship. It defines and delimits the rights under the Canadian laws of the Indigenous Peoples in contrast with the government. As such, Indigenous Law is part of Aboriginal law, although, the former deals with the governing laws and the internal legal systems of the Indigenous Peoples, while the latter is borne out of the peoples’ customary laws and culture.
While Aboriginal law are developed by the court through its decisions, or by the legislature, Indigenous law is said to be developed by the Indigenous Peoples themselves, as an exercise of their right to self-determination and self-government. Some highlights of Indigenous law are land, water, and conflict-resolution.
These legal system of court decisions and legislative laws which form part of Aboriginal law is important as it is a continuing recognition of the rights of Indigenous Peoples in Canada. It has become the foundation of the continuing process of asserting these various rights, which continues to guide modern lawmakers and the best aboriginal law lawyers alike.
In addition, these statutes and judicial decisions are the bedrock in asserting the duty and the obligations of the Crown and its government to the Indigenous Peoples.
Scroll down below to get in touch with the best aboriginal law lawyers in your area.