Interpreting Aboriginal Law

AuthorRuth Sullivan
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://
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.

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