Understanding the Differences Between Indigenous and Aboriginal Law

Indigenous law is the law and legal orders Indigenous peoples have always had or that has been made or developed by Indigenous peoples. Aboriginal law is the law that public governments and Canadian courts have developed in relation to Indigenous peoples.

Over the last 40 years, the Supreme Court of Canada has released over 50 judgments dealing with Aboriginal law. Much of this jurisprudence has been focused on Indigenous land-related grievances and has engaged the interpretation of section 35 of the Constitution Act, 1982, which protects the “existing aboriginal and treaty rights of the aboriginal peoples of Canada” (i.e., the First Nation, Inuit and Métis peoples).

In addition, over the last 20 years, the Supreme Court of Canada has developed a series of legal frameworks anchored on the honour of the Crown—as a constitutional principle—to advance reconciliation with Indigenous peoples, including fiduciary duties, the duty to consult and accommodate, obligations related to the diligent implementation of promises made in treaties, constitutional documents and related processes, amongst others. These duties have implications for public governments, institutions, regulatory bodies, industry and third parties.

Historic and modern-day treaties, the Indian Act and the complexities of reserve lands as well as other pieces of federal, provincial and territorial legislation dealing with Indigenous lands, land and water management, environmental assessment, child and family services, and Indigenous languages are also fundamental to understanding modern Aboriginal law. These constitutional, statutory or regulatory frameworks, including the individual or collective statutory rights they create, must be considered and understood in order to provide comprehensive and strategic advice on Aboriginal law-related matters.

Finally, Aboriginal law is also informed by the United Nations Declaration on the Rights of Indigenous Peoples, the Final Report of the Royal Commission on Aboriginal Peoples (RCAP), the Final Report of the Truth and Reconciliation Commission of Canada (TRC) and the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG), as well as many other reports from inquiries and processes that have addressed and made recommendations with respect to Indigenous rights, interests and claims.