Interpreting Aboriginal Law

• Author: Ruth Sullivan
• Pages: 251-258

251

CH AP TER 15

INTERPRETING

ABOR IGINAL L AW

A. INT RODUCTION

Aboriginal l aw, that is, the law that governs Canada’s Indigenous peoples

and their relations with non-Indigenous Canadians, has long been rec-

ognized as an i mportant part of the Ca nadian legal system. This law

has many sources, includi ng Indigenous law,1 the Royal Proclamation

of 1763, treaties between the Crown a nd Aboriginal peoples, and stat-

utes like the Indian Act or more recently the First Nation s Comme rcial

and Industrial Development Act and the First Nations Fiscal Management

Act. Indigenous law and traditional k nowledge are sometimes expre ssly

incorporated into legi slation.2 The common law has recog nized a var-

iety of Aboriginal r ights. Finally, since 1985 treaty and other Aborigin-

al rights have entrenched const itutional status under sect ion 35 of the

Constitution Act, 1982.

A number of aspects of the inter pretation of Aboriginal law are ex-

plored in this chapter under the following headings:

1 Mitchell v Canada (Minister of Nat ional Revenue), 2001 SCC 3 at paras 9–10. For

an account of the impor tant role played by Indigenous law i n Canada’s consti-

tution and legal sy stem, see John Borrows, Indigenou s Legal Traditions in Canad a

(Ottawa: Law Comm ission of Canada, 2006), online: htt p://publications.gc.ca/

collections /collection_2008/lcc- cdc/JL2-66 -2006E.pdf, or “Cre ating an Indige-

nous Legal Commun ity” (2005) 50 McGill Law Journal 153.

2 See, for example, the A boriginal Custom Adoption Rec ognition Act, SNWT 1994,

c 26, and the Child and Family Ser vices Act, SY 2008, c 1, s 134.