Aboriginal Law and Indigenous Law in the Federal Courts of Canada

AuthorDwight Newman, QC
ProfessionProfessor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan
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Aboriginal Law and Indigenous Law in
the Federal Courts of Canada
Dwight Newman, QC*
     the Federal Court of Canada’s statutory
jurisdiction and broader constitutional and societal developments, the Fed-
eral Court has been asked to rule on many legal issues involving Indigenous
Peoples. Many such issues were imposed unexpectedly upon the court, but
the court has also been ready to take proactive steps in developing a sophis-
ticated engagement with legal issues involving Indigenous Peoples.
Pursuant to the Federal Courts Act, the Federal Court ends up having statu-
tory jurisdiction in such cases because of its jurisdiction over claims against
the federal Crown, which can encompass various Indigenous rights claims,
and its jurisdiction in relation to judicial review of decisions of federal bodies
and tribunals whose decisions aect Indigenous Peoples, including certain
First Nations decision-making bodies.1 Some judicial review applications go
directly to the Federal Court of Appeal, including most notably, for present
* BA (Regina), JD (Saskatchewan), BCL, MPhil, DPhil (Oxford); Professor of Law &
Canada Research Chair in Indigenous Rights in Constitutional and International Law,
University of Saskatchewan. I thank Levi Graham for his research assistance on parts
of this article, Adrienne Tessier for some related discussions, and the justices of the
Federal Court and Federal Court of Appeal who reviewed a draft version of the chap-
ter. A robust engagement with the publisher’s editorial processes has also led me to
clarify some points.
1 Federal Courts Act, RSC 1985, c F-7, ss 17(1), 18, & 18.1.
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        
purposes, f‌inal decisions of the National Energy Board (now the Can-
adian Energy Regulator) on matters where it has that f‌inal decision-making
authority, decisions of the Governor-in-Council based on recommendations
from the National Energy Board or Canadian Energy Regulator where f‌inal
decision-making rests with the Governor-in-Council, and decisions of the
Specif‌ic Claims Tribunal.2
Over the f‌irst f‌ive decades of the Federal Court’s existence, the mix of
these issues involved four broad areas, which will structure this chapter. First,
some Aboriginal law issues were present in foundational cases concerning the
court’s own jurisdiction and its ongoing careful application of the law in each
Aboriginal law decision. Second, some issues have concerned the implications
of procedural and evidentiary rules of the court in Indigenous contexts, and
these issues have seen the court engaged in more recent outreach and discus-
sion seeking to be responsive to complex needs. ird, other issues often
arising in various regulatory contexts with judicial review proceedings within
the purview of the Federal Court system — brought about extensive, nuanced
engagement with constitutionally entrenched Indigenous rights, notably
involving in recent years the legal doctrine on consultation with Indigenous
Peoples. Fourth, a very recent phase of cases has seen the court thinking anew
about the relationship between Indigenous law that is to say, the laws of
Indigenous communities, Nations, or Peoples themselves — and Canadian law.
Stretching over the f‌ifty-year period of history at issue, this discussion is
situated in a context where the English-language terminology has shifted sig-
nif‌icantly. e term “First Nations” has largely replaced “Indian,” although
the latter may sometimes be necessary in certain legal contexts that range
from statutory contexts (such as the Indian Act) to regulatory contexts (like
the Indian Oil and Gas Regulations) to constitutional contexts (including both
section () of the Constitution Act,  and section  of the Constitution Act,
 ). e term “First Nations” thus does not encompass Inuit or Métis. e
preferences of Indigenous individuals, Nations, or Peoples on terminology
can vary in complex ways, with many also preferring to be referred to by their
own Indigenous names for themselves. e term “Indigenous” has become
general international terminology in an attempt to reach a broad term, with
Indigeneity often encompassing groups that would not be “Aboriginal” in
the sense of being f‌irst occupants. “Indigenous” is thus a term that can con-
nect to international legal standards. However, there cannot be unthinking
Ibid, ss 28(1)(f) and (r).

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