Caveat Lector!

I am not an indigenous person or authority, but a humble student of indigenous law. As such, I don’t pretend to speak as an authority concerning it.

Indigenous Law in Canada

Official Status

In the two decades since the year 2000, the Nisga’a and Inuit have formed their own national assemblies, courts and laws. This could pave the way to indigenous law becoming officially part of Canadian law.

Constitutionality

The Royal Proclamation of 1763 recognizes the sovereignty of indigenous people by recognizing (1) their possession of territories outside of the Dominion of Canada and (2) by commanding its subjects not to occupy these territories. Thus, in theory, indigenous people have the right to govern themselves in their own territories according to their own laws, as they did before and after European settlers arrived.

While the Charter does not explicitly recognize indigenous language rights, it should be read to include them for the same reasons as French language rights. Like indigenous people, French colonists (Quebeckers) were colonized by the English. However, unlike indigenous people French Canadians were

    • given their own province,
    • given constitutional language rights,
    • allowed to form and govern themselves by their own national assembly and
    • allowed to develop and apply their own system of private (civil) law.

There is no reason under Canadian law why indigenous people shouldn’t have at least the same rights as French Canadians except that it’s meant to disfranchise indigenous people.

The Charter declares French and English to be the official languages of Canada at s. 16, giving these languages equal status. S. 27 says the Charter shall be interpreted to preserve the multicultural heritage of Canadians, including indigenous people. Finally, s. 15 says the Charter won’t discriminate against Canadians on grounds of race or ethnicity. Hence, if the Charter is interpreted to preclude the language rights of indigenous people, this would violate their s. 15 and s. 27 rights.

A Living Tradition

Indigenous traditions are living traditions. These are not preserved in ‘dead’ documents that are logged away in an archive and forgotten, but rather through stories, artifacts, ceremonies and relationships that are maintained through successive generations.

For instance, in many indigenous traditions a contract is a person’s word of honour. Honour and trust aren’t built by signing or interpreting documents but by being true to one’s word and through acts of friendship, such as participating in feasts or ceremonies, offering presents or providing needed support.

Indigenous people consider European colonists to have often cheated them with contracts, which they originally saw as a token of friendship and goodwill.

Indigenous Scholars, Lawyers and Activists

Scholars

Lawyers

Activists