Interpreting Aboriginal Law

• Author: Ruth Sullivan
• Pages: 251-258

251

CHAPTER 15

INTERPRETING

ABORIGINAL LAW

A. INTRODUCTION

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 important part of the Canadian legal system. This law

has many sources, including Indigenous law,1 the Royal Proclamation

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

utes like the Indian Act or more recently the First Nations Commercial

and Industrial Development Act and the First Nations Fiscal Management

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

incorporated into legislation.2The common law has recognized a var-

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

al rights have entrenched constitutional status under section 35 of the

Constitution Act, 1982.

A number of aspects of the interpretation 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.