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Aboriginal Law and Indigenous Laws

What is Aboriginal Law?

"Aboriginal law is a body of law, made by the courts and legislatures, that largely deals with the unique constitutional rights of Aboriginal peoples and the relationship between Aboriginal peoples and the Crown. Aboriginal law is largely found in colonial instruments (such as the Royal Proclamation of 1763, the Constitution Acts of 1867 and 1982 and the Indian Act) and court decisions, but also includes sources of Indigenous law."

--Estella White (Charleson) - Hee Naih Cha Chist, "Making Space for Indigenous Law" 

Sources of Aboriginal Law

  • Treaties: agreements made between Indigenous communities and the Crown. Treaties are used to form alliances, establish relationships, and create and renew ongoing commitments. Because they formalize the relationship between Indigenous and colonizing communities and set out theoretically shared standards of behaviour and mutually beneficial relationships, they exist at an intersection between Aboriginal Law and Indigenous Law. There are both modern and historical treaties.
  • Canadian Constitutional Law: Constitutional laws are pieces of colonial and settler legislation that outline Canada's structure as a country and government. Both the Constitution Act of 1982 and the Charter of Rights and Freedoms affirm and acknowledge the rights of Indigenous peoples in Canada.
  • Legislation: Acts or statutes passed by governmental bodies that set out the law in a given jurisdiction. Statutes are passed by the federal government and in each provincial jurisdiction each year. Statutes passed may be new statutes or amendments of earlier statutes. The law, then, is the original act and any subsequent amendments to that act. While there are Indigenous laws, the legislation section under Aboriginal law focuses specifically on statutes from the Canadian government and subordinate colonial and settler bodies. See "Indigenous Law" for Indigenous legal traditions.
  • Caselaw: In common law systems, cases heard before courts set precedent for further judgements and decisions. Reports of cases further our understanding of the law. Key Aboriginal Law cases set out frameworks for how the courts hear and decide cases concerning Indigenous peoples and communities.