Indigenous laws are gaining recognition in Canada’s legal landscape, but have always been a part of the fabric of the nation.
Canadian law is a multi-juridical system, where many forms of law coexist. Canada’s legal system was founded on a combination of English common law, French civil law (in Quebec), and Indigenous legal traditions. This complex system continues to evolve with more overlaps. Understanding the different strands in the fabric of the legal system helps communities, lawyers and professionals navigate these systems.
Key differences
Aboriginal law is a set of rules made about Indigenous people by non-Indigenous governments. Canadian legislatures and courts create and define this area of law. Aboriginal law defines Indigenous peoples’ rights in Canada and the legal relationship between Indigenous peoples and the Crown. Documents like the Royal Proclamation of 1763, the Constitution, the Indian Act, and court decisions inform the scope of Aboriginal law. The Canadian state writes, interprets, and enforces these rules.
Indigenous laws are the rules that Indigenous peoples developed for themselves. This area of law is diverse and community-specific. Indigenous law can take the form of written legislation like Canadian law, but also includes oral histories, codes of conduct, decision-making processes, and relationships with land. Importantly, Indigenous laws exist in the present, not just the past. Indigenous legal traditions have been recognized throughout Canadian legal history and continue to be active, valid sources of law.
Spaces where Aboriginal and Indigenous law overlap
The differences between the two forms of law are not absolute. Parts of Aboriginal law recognize and affirm Indigenous law. In the landmark case Delgamuukw v British Columbia, the Supreme Court of Canada ruled that oral histories must be given equal weight to written documents in court. The Court understood that oral histories of the Gitxsan and Wet’suwet’en peoples were not simply stories, but the legal record of their communities and a key source of law. In this example, the Court’s decision re-shaped Aboriginal law by recognizing and affirming Indigenous law processes.
Indigenous laws may also work together with or respond to Aboriginal law. For example, the Métis Settlements Act (an Alberta law) provides a legislated land base for Métis people in the province, and the framework for how those lands are managed. Within that framework, the eight Métis settlements in Alberta have the power to pass bylaws for their communities. The community customs, membership rules, and land-use practices defined within the community bylaws reflect Métis laws that predate the province of Alberta. Indigenous law interacts in meaningful and enforceable ways with Canadian state law.
Whose jurisdiction is it anyway?
Aboriginal law reflects a nation-to-nation relationship between Indigenous peoples and the Canadian government. Many of these relationships are interpreted through the historic treaties. The Treaties are nation-to-nation agreements, more similar to international law. Treaties and their interpretation affect and inform both Aboriginal law and Indigenous law.
Many regions of Canada are not covered by historic treaties, including most of British Columbia, large parts of Quebec, the Atlantic provinces and the north (known as “unceded” territories). This has led to the development of modern treaties and negotiations between federal government, territorial governments, and Indigenous nations. As a result, the jurisdictional map becomes more complicated.
Indigenous rights are not under provincial jurisdiction, but many areas of life and law that fall under provincial power are relevant to Indigenous peoples’ lives, especially family law and land rights.
A practical example: The CYFEA
In 2019, the federal government developed An Act respecting First Nations, Inuit and Métis children, youth and families (also known as C-92). The Act creates a framework that upholds Indigenous jurisdiction over child and family services throughout Canada. The Child, Youth and Family Enhancement Act (“CYFEA”) is Alberta’s main child protection law, but C-92 affirms that if a child is a member or citizen of a First Nations, Inuit, or Métis community with its own child protection law in force, the Indigenous law prevails over the CYFEA.
Currently, there are five Indigenous laws in effect in Alberta related to child protection. Multiple government actors and agencies must cooperate and communicate to navigate this framework.
Why understanding Indigenous law matters: Legal certainty
Section 35 of Canada’s Constitution Act, 1982 “recognizes and affirms” Aboriginal rights. However, the Supreme Court has made it clear that those rights are rooted in the legal systems of Indigenous nations. Upholding Indigenous rights sometimes demands an understanding of these Indigenous legal orders.
Kebaowek First Nation v Canadian Nuclear Laboratories is a recent Federal Court case that again emphasizes that the Canadian government must recognize Indigenous law, not just Aboriginal law, in federal proceedings. The case looked at the Canadian Nuclear Safety Commission’s decision to allow a company to build a massive nuclear waste site on unceded territory. The Federal Court acknowledged that Indigenous Nations are not just stakeholders but governments with their own jurisdiction over environmental impact and land use. The Court ruled that regulatory bodies like the Commission must consider an Indigenous Nation’s laws and practices when designing a process for consulting that Nation about land development projects.
Stability depends on certainty. This is especially true in an economic context. Canadian courts are increasingly ruling that a constitutional process doesn’t just mean following provincial regulations. It can also mean respecting the Indigenous laws of the land where the project sits. Failing to understand where Indigenous law is relevant creates legal uncertainty, undermines constitutional obligations, and risks conflict.
As Alberta navigates a more pluralistic legal landscape (where different legal systems coexist), understanding the relationship between Aboriginal law and Indigenous law is key. Recognizing where these legal systems differ and how they interact allows individuals, institutions, and governments to move forward using an accurate map of the legal landscape.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Lindsey Zess
