Canada’s legal evolution

Indigenous and Aboriginal law in Canada is an evolving area that reflects the nation’s ongoing journey towards reconciliation with its First Nations, Métis and Inuit peoples.

As part of this process, the courts play a critical role in interpreting Indigenous rights, resolving land claims and integrating Indigenous perspectives into the legal system. For lawyers in the UK, understanding the Canadian legal framework around Indigenous issues provides insight into how modern legal systems can engage with Indigenous rights, autonomy and historical injustices.

The legal recognition of Indigenous rights and the relationship between Indigenous peoples and the Canadian state has been shaped by a long and complex history. This area of law is distinct but closely interwoven with Canadian constitutional law and has been significantly shaped by rulings from the Canadian courts, particularly the Supreme Court of Canada. For lawyers in the UK and Scotland, where the history of settler-Indigenous relationships differs, the Canadian approach to Indigenous law offers important insights into the evolving legal landscape concerning Indigenous rights, self-determination and reconciliation.

The distinction between Aboriginal and Indigenous

In the Canadian legal context, the terms ‘Aboriginal’ and ‘Indigenous’ are often used interchangeably, but they carry different legal and cultural connotations. Aboriginal is a term used in the Canadian Constitution (Section 35) to refer specifically to First Nations, Inuit and Métis peoples. However, Indigenous is increasingly preferred, as it aligns with international usage (for example, the United Nations Declaration on the Rights of Indigenous Peoples) and is viewed as more inclusive and respectful. Indigenous better captures the broader, global identity of peoples with unique cultural, spiritual and territorial connections, while Aboriginal remains a formal term in Canadian constitutional and legal frameworks.

Indigenous legal traditions and self-government

An emerging trend in Canadian Indigenous law is the recognition of Indigenous legal traditions. Indigenous peoples in Canada have their own legal systems and governance structures, many of which have existed for centuries. These systems are distinct from Canadian common law and civil law traditions and encompass a holistic approach to justice, governance and dispute resolution.

The recognition of Indigenous legal traditions represents a crucial aspect of reconciliation and self-determination. Increasingly, Canadian courts and governments are acknowledging the importance of incorporating Indigenous law into the broader legal landscape. For example, the 2016 Canadian Truth and Reconciliation Commission report called for the recognition and integration of Indigenous law into the Canadian legal system as part of its 94 calls to action.

Self-government agreements between Indigenous groups and the Canadian state are also becoming more common. These agreements grant Indigenous communities greater control over their lands, resources and governance, reflecting a shift towards increased autonomy for Indigenous peoples.

Historical background and constitutional framework

The legal foundation of Indigenous rights in Canada stems from both the historical treaties and the constitutional framework established through documents like the Royal Proclamation of 1763, which recognised Indigenous land rights and sought to limit the expansion of European settlers. This document was a precursor to modern land claims processes and was one of the first legal instruments to acknowledge the need to protect Indigenous lands from encroachment by settlers.

In addition to this, Section 35 of the Constitution Act, 1982 marked a turning point in Canadian Indigenous law, affirming that the “existing Aboriginal and treaty rights” of Indigenous peoples are constitutionally protected. The ambiguity around the interpretation of Section 35, however, has led to a long line of litigation in Canadian courts, with Indigenous peoples seeking to define the scope and content of these rights.

The role of the courts

The Canadian judiciary, and especially the Supreme Court of Canada, has played a central role in interpreting Indigenous rights, clarifying the relationship between Indigenous peoples and the Crown, and shaping modern Canadian jurisprudence on Indigenous matters.

One of the earliest landmark cases, Calder v British Columbia (1973), acknowledged for the first time that Indigenous peoples have a legitimate claim to land rights based on their historical occupation, even if these rights had not been explicitly recognised by treaties. This case laid the groundwork for recognising Indigenous land claims across Canada, and the legal concept of ‘Aboriginal title’ became a significant issue for the courts.

Since then, the courts have expanded the interpretation of Indigenous rights, with several notable rulings:

1. R v Sparrow (1990): In this case, the Supreme Court of Canada held that Section 35 rights were not absolute but were subject to reasonable limitations. The court established a test for determining when the Government could infringe upon Indigenous rights, stipulating that such infringement must serve a valid legislative objective and be consistent with the Crown’s fiduciary duty to Indigenous peoples. This decision underscored the importance of Indigenous rights in the constitutional framework, while allowing for a balancing of competing interests.
2. Delgamuukw v British Columbia (1997): In one of the most significant rulings concerning Aboriginal title, the court in Delgamuukw clarified that Aboriginal title is a unique right in land, not just a right to traditional uses. The case emphasised the collective nature of Aboriginal title and set a precedent for how courts should approach Indigenous land claims, particularly by stressing the importance of oral histories in proving Indigenous land rights.
3. Tsilhqot’in Nation v British Columbia (2014): In this case, the Supreme Court of Canada issued a historic decision that granted a declaration of Aboriginal title to the Tsilhqot’in people over a specific territory in British Columbia. This was the first time the court had recognised a claim of Aboriginal title based on historic occupancy. The decision cemented the understanding that Indigenous land rights include the right to determine how the land is used and the right to economic benefits from the land.

These cases highlight the evolving role of Canadian courts in shaping Indigenous law. The courts have been instrumental in moving Canadian law towards a more robust recognition of Indigenous rights, particularly in terms of land, culture and governance.

Written by the Editor, Rebecca Morgan.