Aboriginal Law Insights

study of Indian ActPart 1: Tips for Students Starting Out

Whether you are reading a law school course calendar or the financial section of the Globe and Mail, you will often see references to “aboriginal law.” It may have crossed your mind as an aspiring young lawyer or law student that you perhaps want to practice aboriginal law and now you want to know, just what do I have to do to get to do that? Actually the first question you should ask is “what is aboriginal law anyway?”

For many people, aboriginal law is synonymous with the famous aboriginal and treaty rights cases such as Delgamuukw, Tsilqhot’in Nation, Haida Nation or Grassy Narrows that have made the headlines over the last twenty years and have starring roles in many law school reading lists. These, along with many others, have given meaning to s. 35 of the Constitution Act, 1982.  In fact, aboriginal law is much broader than this, touching on nearly all legal subjects and disciplines.  First Nations, Aboriginal people and organizations largely face the same legal challenges as non-aboriginal people and organizations, but they must also deal with two complex parallel legal regimes – Aboriginal peoples’ special rights and status under the Constitution (what we normally think of as “aboriginal law”) and each nation’s laws, legal traditions and culture (what you may roughly think of as “indigenous law”).  A lawyer practicing aboriginal law’s role is to assist First Nations, Aboriginal people and Aboriginal organizations navigate through this complex legal regime.

Lawyers practicing aboriginal law need to understand these various legal systems and regimes to assist their clients to make good decisions within this broad and complex legal landscape. On a regular basis, these lawyers deal with issues within a number of fields of law, including:

  • administrative,
  • criminal,
  • corporate,
  • constitutional,
  • trusts,
  • contracts, and of course
  • the unique constructs of the Indian Act.

If a lawyer is dealing with bands operating under the Indian Act  he or she must master a unique statutory framework, which includes not only the Indian Act, but also more recent legislation such as the First Nations Land Management Act, First Nations Election Act, First Nations Fiscal Management Act and others.  Additionally there is a growing body of law concerning how the Canadian Charter of Rights and Freedoms and federal and provincial human rights legislation applies to Indian bands and their decision making and law making processes.  This already complex web of law is made even more complicated by the fact that as the modern land claims settlement process continues there is a growing quilt of unique First Nations legal regimes emerging across Canada, especially in the North, Quebec, Newfoundland and Labrador and, especially, British Columbia.

This legal regime is further complicated by the fact that First Nations also operate within their own legal traditions, which must be reconciled with the legal and political systems imposed by the newcomers who arrived between 500 and 200 years ago (depending on where in the country you are). Euro-Canadian laws often do not fit well with indigenous concepts and a lawyer practicing aboriginal law must seek to understand the gaps between them. It is important that lawyers practicing aboriginal law work hard to find creative solutions to bridge this gap and not assume that the Euro-Canadian legal system cannot address the client’s legal challenges. The task of translating and incorporating indigenous and non-indigenous legal systems into the other is a unique challenge in the aboriginal law field.

Finally, aboriginal law is not just advising First Nations, tribal councils or governments recognized by modern land claims agreements.  Lawyers advising Aboriginal individuals will also encounter aboriginal law in other areas of practice. Aboriginal persons who have status under the Indian Act, for example, may experience special advantages or disadvantages when it comes to operating businesses, paying taxes, borrowing monies, owning or transferring land, or receiving programs and services.  Aboriginal people face specific challenges when dealing with the conventional criminal justice system and the system includes certain protections, such as specific sentencing considerations, in part to address the centuries of systemic discrimination that has resulted in Aboriginal Canadians being dramatically over-represented in the Canadian prison system.

Of course, government, industry and individuals who are dealing with First Nations, Aboriginal organizations and Aboriginal people will also have to factor in the unique legal regime that makes up “aboriginal law” when making plans and decisions. While historically these relationships have often been hostile, increasingly they are becoming positive and creating new opportunities for First Nations and Aboriginal individuals to achieve their goals. It is important that the non-aboriginal entities also receive creative legal advice to continue to build toward reconciliation and to minimize conflict wherever possible. Students interested in aboriginal law should consider how they can contribute positively to these relationships from both sides of the table.