Researching Aboriginal Law

Aboriginal law is a diverse and complex topic, which encompasses issues such as land claims, hunting and fishing rights, residential school settlements and self-government, among others. This article outlines some of the key legal documents, useful Internet sites, databases and other resources available when researching these legal issues. We at the Alberta Law Libraries have the legal resources and research expertise to help you with this and other areas of law.

As a starting point, Halsbury’s Laws of Canada (available in print, or electronically on Quicklaw) has an entire volume devoted to Aboriginal Law.  As well, Toronto lawyer Bill Henderson has a website with a helpful historical overview, titled A Brief Introduction to Aboriginal Law in Canada.

Other Useful Overview Sites

• Native Law Centre – University of Saskatchewan
• Aboriginal Affairs and Northern Development Canada (AANDC) – Government of Canada
• Royal Commission Report on Aboriginal Peoples – 1996
• Aboriginal Justice – Government of Alberta information on initiatives and programs currently underway in Alberta, as well as other topics of interest
• University of Alberta Library – Aboriginal Law Sources
• Bora Laskin Law Library (University of Toronto) – Aboriginal Law in Canada

Legislation

• Acts, Bills and Legislation – as collected by AANDC
• Indian Act (RSC, 1985, c I-5)– this is a central and contentious piece of legislation, in which such issues as Indian status, taxation and Aboriginal governance are included
• First Nations Gazette – the stated mission of the FNG is “to provide public notice of First Nation laws, by-laws, land codes, and other First Nation legislation, and to otherwise serve as the authoritative reference for First Nation law in Canada”
• CanLII – a useful site for searching both legislation and case law, which interprets the legislation.  Further case law resources are provided below.

Treaties

• Treaty-Making in Canada – a comprehensive site by AANDC which includes the
• Treaty Texts and
• Maps of Treaty-Making in Canada

Land Claims

• This site is also part of the larger AANDC site and discusses both Comprehensive and Specific Claims.  It provides information regarding the unfinished business of the Treaties and other related laws.

Case Law

• Canadian Native Law Cases – a 9-volume set covering Aboriginal cases from 1763 to 1978. Major cases are covered by CNLR after this period.
• Canadian Native Law Reporter (CNLR) – available in print at some Alberta Law Libraries and in Quicklaw
• Aboriginal Law Netletter (monthly digests by Quicklaw)
• Aboriginal Law – Canadian Abridgment eDigest – weekly updates with summaries of new cases related to aboriginal law including land claims, hunting rights, status under legislation.   This is a Westlaw Canada product, but available for free online, including back issues.

A few key Supreme Court of Canada decisions:

• Assembly of First Nations – Council of the First Nations Chiefs R v Marshall, [1999] 3 SCR 456;  [1999] 3 SCR 533 – clarification that Native fishing rights applied to fisheries only and not to all natural resources
• R v Gladue, [1999] 1 SCR 688 – there are special considerations that the courts must take into account when sentencing Aboriginals convicted of criminal offences
• R v Sparrow, [1990] 1 SCR 1075 – the Court for the first time set out criteria for determining whether a right can be considered an “existing” right and whether the government is justified in curtailing such a right

Advocacy and Awareness Groups

• Assembly of First Nations – Council of the First Nations Chiefs
• The Congress of Aboriginal Peoples, formerly the Native Council of Canada, advocates for non-status and off-reserve First Nations people, as well as Métis people.
• Metis National Council – represents the Métis Nation nationally and internationally
• Centre for First Nations Governance – one of a few organizations pushing for Aboriginal self –governance
• BearPaw Legal Education and Resource Centre – stated goal of this Alberta-based Centre is to help Aboriginal people navigate the legal system and gain awareness of their legal rights and obligations
• Native Counselling Services – an Alberta-wide organization which promotes wellness of Aboriginal individuals, families and communities through programs and services such as court workers, restorative justice, media productions, legal research and education

Residential School Settlements

• Indian Residential Schools Settlement – Official Court Website
• Truth and Reconciliation Commission – many good resources, not just legal ones

What Alberta Law Libraries Offer

Alberta Law Libraries is a network of libraries throughout the Province, which offers many legal resources to help both lawyers and lay people in their research:

• Access to paid online databases, including HeinOnline, in any of our locations, Quicklaw in Calgary and Edmonton, and Westlaw Canada in our other locations.  These databases, in addition to legislation and case law, contain books and articles discussing Aboriginal legal issues.
• Many print  resources, some of which are also available electronically, and most of which are listed in our Aboriginal Law Research Guide, including:
  • Indigenous Law Journal by the University of Toronto Faculty of Law
  • Aboriginal Law Handbook by Olthuis, Kleer and Imai
  • Aboriginal Law: Cases, Materials and Commentary by Borrows and Rotman
  • Native Law by Woodward
  • Treaty Rights in the Constitution of Canada by Henderson
  • Treaty Rights in the Historic Treaties of Canada by Isaac and Annis
• Professional law librarians who can assist you in your legal research.  Consider Alberta Law Libraries your legal information navigator; please feel free to contact us!