Indigenous Peoples

The Charter calls indigenous peoples “Aboriginals,” whom it defines to include “Indian,” Inuit and Métis (mixed blood) peoples of Canada. To have Indian status one must be registered under the Indian Register or Band List maintained by the Department of Indian Affairs. In order to register according to the Indian Act one has to

    • be a member of a registered band (subpar. 6(1)(b)) or
    • have a parent who is registered or entitled to be registered (subs. 6(2)).

Subs. 10(1) of the Indian Act lets a band establish its own membership rules by majority vote if it gives appropriate notice of its intention to the Minister of Indian Affairs. Bands can also amalgamate or add and delete members pursuant to subs. 10(10) and 11(4) of the Act.

In its decision Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, the Supreme Court of Canada declared that Canada’s 600,000 Métis and non-status Indians are indeed “Indians” under the Constitution and can therefore register under the Indian Act. More specifically, the Supreme Court declared that

    • Métis and non‑status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867,
    • the federal Crown owes a fiduciary duty to Métis and non‑status Indians and
    • Métis and non‑status Indians have the right to be consulted and negotiated with.

According to the Supreme Court of Canada in R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43 and the Métis National Council website, “Métis” means a person who

    • self-identifies as Métis,
    • is distinct from other “Aboriginal” peoples,
    • is of historic Métis Nation ancestry and
    • is accepted by the Métis Nation.

These rules are meant to replace the old Indian Act rules that define indigenous peoples by blood (e.g., full-blood, half-blood, quarter-blood) and patrilineal descent, ostensibly based on the Biblical (Genesis) definition of a nation. While the old laws don’t take into account indigenous peoples’ own definitions of nationhood, it is questionable if the new laws result in a less ‘racist’ outcome or one that is designed to replace the original population.

“Aboriginal” Rights

“Aboriginal” rights apply equally to male and female persons under s. 35 of the Charter. S. 25 of the Charter does not “abrogate or derogate” (i.e., eliminate or reduce) “Aboriginal” rights including:

The Royal Proclamation recognizes the sovereignty of indigenous peoples. The landmark decision Connolly v. Woolrich, [1867] Q.J. No. 1 recognizes that indigenous peoples have their own legal traditions, some of which common law courts consider to be legitimate and enforceable (this case recognized the legitimacy of an indigenous marriage ceremony).

Indigenous Law

While there are many indigenous legal traditions in Canada (which we shall call ‘Indigenous law’ for short), this section provides information and resources for eight major ones, namely:

    • Mi’kmaq
    • Hodinohso:ni
    • Anishinabek
    • Cree
    • Métis
    • Carrier
    • Nisga’a
    • Inuit