Introduction to Aboriginal Law

Robert J. Kennaley for The Lawyers Weekly

The Constitution Act, 1982 defines Aboriginal peoples in Canada to include Indians, Inuit and Métis 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

"... under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, having not been ceded or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds."

Both the Royal Proclamation and common law decisions in Canada 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. In Canada, 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 in Canada.

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 obstacle to securing credit or conducting business under normal commercial terms in Canada.

In Canada, there are surrender treaties, which 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 government. In 1982, the Constitution was amended to provide that existing aboriginal and treaty rights are recognized and affirmed. The amendment did not create Aboriginal or treaty rights; it merely entrenched those existing rights in the Constitution and prevented governments in Canada from unilaterally extinguishing such rights.

Robert J.M. Adkins and Sacha Paul are at Thompson Dorfman Sweatman LLP in Winnipeg.


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