Introduction to Aboriginal Law

No area of law is easily reduced to an introduction and Aboriginal law is no different. In approaching this issue, we consider the law in Canada applicable to Aboriginals and not the laws of Aboriginal peoples.

The Constitution Act, 1982 defines Aboriginal peoples to include Indians, Inuit and Métis peoples. These terms in their breadth, belie the distinctions between and within these peoples.

Aboriginal law begins with European contact, which occurred at different times, and with different European Nations. The importance of contact is seen in The Royal Proclamation of 1763, which in effect was an Imperial expression that indigenous peoples who

Both the Royal Proclamation and common law decisions established that Indigenous peoples could not alienate their land to anyone but the Crown or Sovereign. The Proclamation laid the foundation for an historic relationship which continues to be reflected in the Indian Act and in Aboriginal title and rights doctrine.

Under section 91(24) of the Constitution Act, 1867, "Indians, and Lands reserved for Indians" fall under Federal jurisdiction. The primary legislative tool in exercising that Constitutional jurisdiction is the Indian Act. This power has been used in relation to First Nations people, but not the Inuit or the Métis.

Provincial laws may apply to "Indians." Under section 88 of the Indian Act, laws of general application in any province are applicable to and in respect of any Indians in the province, but this is subject to the treaties and is not applicable to the extent such provincial laws are inconsistent with the Indian Act and other relevant Federal enactments.

The Indian Act provides that land and personal property (like income) on a reserve is exempt from taxation. Further, with the exception of property subject to a conditional sale, or a leasehold interest in designated lands, the "real and personal property of an Indian or a band situate on reserve is not subject to charge, pledge, mortgage, attachment levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band". This exemption does provide a level of protection to bands and Indians, but it can be an impediment to securing credit or conducting business under normal commercial terms.

In Canada, there are surrender treaties, which expressly cede Aboriginal title and associated rights to the Crown in return for certain promises, and there are friendship treaties with Aboriginals. In some areas there are no treaties and Aboriginal title and rights continue, subject to the constitutional powers of the Federal Crown. In 1982, the Constitution was amended to provide in section 35 that existing aboriginal and treaty rights are recognized and affirmed. Section 35 did not create Aboriginal or treaty rights; it merely entrenched those existing rights in the Constitution and prevented governments from unilaterally extinguishing such rights.

In R. v. Sparrow and later in R. v. Badger, the Supreme Court considered the general analysis under section 35. The claimant must establish the existence of the asserted Aboriginal or treaty right; that the asserted right was not extinguished before 1982; and that the asserted right has been infringed. The onus then falls on the Crown to establish that the infringement was justified. To do this the Crown must show that it was acting pursuant to a valid legislative objective; and that its actions were consistent with its fiduciary duty towards Aboriginal peoples. Showing that its actions were consistent with its fiduciary duty may include determining if the infringement is as minimal as possible; whether the Crown consulted with the Aboriginal group before acting; and whether the Aboriginal group has been compensated where the Crown action has resulted in a loss.

Recently, in the decisions of Haida Nation v. British Columbia and Taku River Tlingit First Nation v. British Columbia, the Supreme Court has indicated that the Crown, not private resource developers, owes a duty of consultation and accommodation with Aboriginal groups. Those cases also identified the duty to consult existed where there was an asserted right that appeared to have potential merit, even if the Aboriginal group had not proven that right in court.

In R. v. Van der Peet, Chief Justice Lamer wrote that the purpose of s.35 was "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown." In essence, all of Aboriginal law is intended to find some type of reconciliation. Ultimately, the Chief Justice hoped, the reconciliation would be achieved not in the courts but at the negotiation table.