CCAT Index

CCAT Index – Indigenous Law

The purpose of this index is to provide a brief introduction to the topic of Indigenous law, situating it in the context of settler colonialism, relating it to the Calls to Action in the Final Report of the Truth and Reconciliation Commission, and providing some examples of Indigenous laws and their applications.

Canada is multi-juridical: it includes common law, civil law, and Indigenous law. VIEW – 1

For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide.” VIEW – 2

Given Canadian colonial history, “[T]he ground of Indigenous law is uneven—Indigenous law exists, it has not gone anywhere—and we saw this, but there are also serious gaps where some Indigenous law [has] been undermined, distorted, or lost. Given this, simply arguing for the recognition of Indigenous law is inadequate because we cannot just assume that there are complete and intact legal orders that can spring to life through recognition. This means that engagement with Indigenous law must move to thoughtful rebuilding …” VIEW – 3

This is the context within which we offer the following:

On February 9, 2024, the Supreme Court of Canada dismissed the appeal, in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, finding Bill C-92 is constitutionally valid. Parliament may affirm that Indigenous Peoples’ inherent right of self–government, recognized and affirmed by s. 35 of the Constitution Act, 1982, includes legislative authority in relation to child and family services. Further, Parliament may affirm that the laws of Indigenous groups, communities or Peoples will prevail over other laws in the event of a conflict.

Treaty-making and Indigenous Law

Canada has a long history of recognizing Indigenous legal traditions by those who first encountered Indigenous Peoples. For example, trade and peace and friendship treaties – such as the Treaty of Niagara in which more than 2,000 Indigenous leaders ratified the Royal Proclamation of 1763 – were conducted in accordance with Indigenous law and diplomatic protocol. VIEW – 4

Call to Action #45 – Royal Proclamation of Reconciliation 

Call to Action #45 calls on the Government of Canada to develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown, built on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, to reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown. Among other things, the proclamation would ensure the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes of agreements such as Treaties. VIEW – 5

No work on Call to Action #45 has started. VIEW – 6

Call to Action #50 – Indigenous law Institutes

Call to Action #50 calls on the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada. VIEW – 7

Work on Call to Action #50 is in progress, including with the establishment of the Juris Doctor/Juris Indigenarum Doctor professional degree program and the Indigenous Law Research Unit at the University of Victoria. VIEW – 8

Indigenous legal principles – Examples 

Cree legal principles include the procedural right to be heard wherever possible before a response or resolution. The right is held by people who have caused harm, people who have observed harm, and people who experienced harm. VIEW – 9

Secwépemc legal principles related to land include that the humans, land and non-human beings are interconnected and interdependent within a larger ecosystem and that resolutions should be proportionate to the violation or harm and must be able to deter future violations. VIEW – 10

Under Anishinaabeg legal principles related to kinship-centred governance and family law, legal responses should nurture relationships. VIEW – 11

Indigenous legislation and legislative models – Examples

While not entirely based on traditional Kanien’kehá:ka governance, the Mohawk Council of Kahnawà:ke has implemented a consensus building process that tries to implement community laws. VIEW – 12  They are also considering the development of their own administrative tribunal, although no draft regulations are publicly available at this time.  A survey of community member responses to questions on a potential administrative tribunal are available online. VIEW – 13

In 2020, the Cowessess First Nation ratified child welfare legislation, the Miyo-Pimatiwisin Act and established the Eagle Woman Tribunal. The Nation reclaimed jurisdiction following Bill C-92 An Act Respecting First Nations, Inuit and Metis, Children, Youth and Families. 

On December 8, 2022, the Supreme Court of Canada reserved judgment on the government of Quebec’s constitutional challenge to Bill C-92. VIEW – 14

Rebuilding 

The Cree Nation of Mistissini in northern Quebec implemented the Mistissini Governance Project on March 17, 2022. This project will support the integration of Cree legal principles and values into a series of fundamental governance laws and be applied across the entire traditional territory, including the creation of five laws: Mistissini Iinuuch Chisa-Wiisuuwehwun (a Mistissini Constitution), a Mistissini Governance Law, a Mistissini Hunting Law, a Mistissini Development Law and a Mistissini Lake Law. The Cree Nation of Mistissini will work closely with elders, tallymen and other community members to gather information—stories, teachings, perspectives, practices—to inform the legal principles and processes related to the five laws to be developed. VIEW – 15a – 15b

The Assembly of First Nations of Quebec-Labrador launched, on April 28, 2022, the Office of Self-Determination and Self-Government in an effort to pool research, legislative materials, and training to help First Nations implement their own laws. VIEW – 16a – 16b

Blending of systems – Example

Established in 2000, the Tsuu T’ina First Nation Court is on the Tsuu T’ina reserve, and its judge, prosecutors, court clerks, court social workers, probation officers, Peacemaker and some defence counsel are Indigenous. The court blends two systems: the Provincial Court of Alberta and the peacemaker process – a circle process that involves the victim and offender, their respective families, and volunteers and resource personnel. The Court uses peacemaking traditions that reflect the values of the Tsuu T’ina Peoples, including smudging with sage or sweet grass. Local Peacemakers and Elders are directly involved in the court process and review the cases diverted from the justice system as well as cases that require dispute resolution. VIEW – 17

1. John Burrows, Indigenous Legal Traditions in Canada, Washington University Journal of Law & Policy, Vol. 19, 2005, pp. 173-74
2. Report of the Truth and Reconciliation Commission of Canada, Executive_Summary_English_Web.pdf (exactdn.com), p. 1.
3. Val Napoleon, What is Indigenous Law? A Small Discussion. Indigenous Law Research Unit. Citing Hadley Friedland and Val Napoleon, “Gathering the Threads: Indigenous Legal Methodology” 2015 Inaugural Issue of Lakehead Law Journal 16.
4. Burrows, pp 178-80. Report of the Truth and Reconciliation Commission of Canada, Executive_Summary_English_Web.pdf (exactdn.com), pp. 196-97.
5. Report of the Truth and Reconciliation Commission of Canada, Executive_Summary_English_Web.pdf (exactdn.com), p. 199.
6. Beyond 94 | 45. Develop a Royal Proclamation of Reconciliation to be issued by the Crown | CBC News.
7. Report of the Truth and Reconciliation Commission of Canada, Executive_Summary_English_Web.pdf (exactdn.com), p. 207.
8. Beyond 94 | 50. Establish Indigenous law institutes | CBC News; UVic’s JD/JID Program  Indigenous Law Research Unit.
9. Hadley Friedland, Accessing justice and reconciliation: Cree Legal Summary. Report prepared for the Indigenous Law Research Unit, Indigenous Bar Association, Law Foundation of Ontario, & Truth and Reconciliation Commission of Canada, 2014: Cree-Legal-Summary-Friedland.pdf (ilru.ca) at p. 40.
10. Jessica Asch, Kirsty Broadhead, Georgia Lloyd-Smith, & Simon Own, Secwepemc lands and resources Law Research Project. Report prepared for the Indigenous Law Research Unit, Shuswap National Tribunal Council, 2016, pp. 38 and 74.
11. Tara Williamson, Simon Owen, with Cheyenne Arnold-Cunningham, worked on together with and Mshkiki Gitigaan Kwe (Katelyn Brennan) (Indigenous Law Research Unit & Niijkiwendidaa Anishnaabekwewag Services Circle), Nawendiwin: The Art of Being Related: Anishinaabeg Kinship-Centred Governance & Family Law (ləkʷəŋən & WSÁNEĆ territory: Indigenous Law Research Unit, 2021.
12. http://www.kahnawakemakingdecisions.com/cdmp/
13. http://kahnawake.com/surveys/results/2022-10-20-SVY-AdministrativeTribunal-Allresults.pdf
14. Supreme Court of Canada – SCC Case Information – Docket – 40061 (scc-csc.ca) CSC 40061_Appelant PGQ_Memoire_PEUT ETRE AFFICHE (scc-csc.ca)
15. https://www.canada.ca/en/department-justice/news/2022/03/revitalization-of-indigenous-laws-in-quebec-a-priority-for-the-government-of-canada.html and https://www.cbc.ca/player/play/2017114691674
16. https://www.aptnnews.ca/national-news/afnql-forms-office-of-self-determination-after-flagrant-lack-of-good-will-from-quebec-government/ and http://nationnews.ca/politics/quebec-first-nations-launch-initiative-to-prepare-self-government-measures/
17. Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System gladue.pdf (justice.gc.ca)

LAND ACKNOWLEDGEMENTS

What is it?
A territorial land acknowledgment is one first small step on the journey to reconciliation. Territorial acknowledgments are statements that acknowledge the original owners of the lands that you live on. An acknowledgement often includes the Indigenous People who are caretakers of the lands since time immemorial, the traditional names of places, and languages that are spoken.

Land acknowledgments are often made to open an event or meeting and set the tone for what is to follow. They are intended for settlers to become more aware of the lands they occupy and of the Indigenous Nations that continue to live on the lands.

What can it mean?

Recognition of Indigenous land can mean several things. Here are just three statements:

• By providing information on the original occupants of the land, a territorial acknowledgement is a way of educating settlers on the Indigenous ways of life that were disrupted by colonialism. Ideally, the acknowledgement would aid in the understanding that the violent destruction of Indigenous ways of life is the foundation of Canadian society. Reference link: VIEW – 1
• “Acknowledgement of the Land on which we are situated is an important sign of respect, presence, assertion and recognition of Indigenous self-determination.”  Reference link: VIEW – 2
• “Land acknowledgements can be an act of reconciliation toward the rebuilding of relationships with Indigenous peoples and lands. By voicing our respect and responsibility, we can strengthen our relationship to the land that sustains us, with Indigenous peoples who hold the land sacred and to one another.”  Reference link: VIEW – 3

Whose land?

The first step to do a proper territorial acknowledgment is to find out what Indigenous territory you live and work on. Consult more than one source to confirm the territory is correct. Reference link: VIEW – VIEW – VIEW – VIEW – VIEW – 4

Making it meaningful

Learn the correct pronunciation of a Nation’s name or language. Reference link: For example, the Nation’s website may include pronunciation or language tools/recordings or you can call the Nation’s answering machine after hours. – 5

A rote land acknowledgement may do more harm than good.
Reflect on the idea of “Reconciliation as Relationship” reflected in the ten Principles of Reconciliation Reference link: VIEW – 6. Reflect on both your personal and organizational role in relationships with Indigenous Peoples and lands. Ask your organization to make space for this discussion. This is an opportunity to see a land acknowledgement in both personal and organizational terms.

Take time and care. The W̱SÁNEĆ Leadership Council provides these questions for you to reflect on:

• Why is this acknowledgement happening?
• How does this acknowledgement relate to the event or work you are doing?
• What is the history of this territory? What are the impacts of colonialism here?
• What is the name and history of the specific place within the territory?
• What is your relationship to this territory? How did you come to be here?
• What intentions do you have to disrupt and dismantle colonialism beyond this territorial acknowledgement?

Seek out other guides and tips to make the land acknowledgment meaningful. Reference link: For example: University of British Columbia Doing Land Acknowledgments; Trent University How to do a Land Acknowledgment; Canadian Bar Association Land Acknowledgements, Treaties and Land Claims; Native Land Territory Acknowledgment; Canadian Association of University Teachers Guide to Acknowledging First Peoples & Traditional Territory; Engineers Canada A guide to acknowledging First Peoples and traditional land – 7

Examples of land acknowledgements

Territorial acknowledgments can be short or long depending on the speaker’s level of knowledge and commitment to reconciliation. For example, a land acknowledgement in Toronto may look like either of these examples:

• “I want to acknowledge that we are on the territory of the Mississaugas of the Credit.”
• “I wish to acknowledge the ancestral traditional territories of the Ojibway, the Anishnabeg and, in particular, the Mississaugas of the Credit whose territory we are gathering on today. This territory is covered by the Upper Canada Treaties. Toronto Purchase (treaty 13): Anishinaabe, Haudenosaunee, Huron-wendat (Wyandot) and Mississaugas of the Credit territory.”

Prior to doing a land acknowledgement, research whether the land acknowledged is treaty land, traditional territory or unceded territory Reference link: For example: Traditional territory is lands within the territorial boundaries of a Nation, outside of treaty lands. This can apply to both Treaty and non-Treaty Nations. so that your land acknowledgement is more informed and therefore more meaningful. It is advisable to research whether the acknowledged Nation has any guidelines or protocols on land acknowledgments. Reference link: For example: Guidelines for the Land Acknowledgements within Mississaugas of the Credit Nation Treaty Lands and Territory. See also Mississaugas of the Credit Logo Usage Guidelines for use of its logo on written documents – 8.

A deeper acknowledgment would provide historical information related to the true history of the place you live and the systematic removal of Indigenous peoples from those lands. The W̱SÁNEĆ Leadership Council provides an example of an in-depth land acknowledgement: Robert’s Bay Territory Acknowledgement -9.

As with most relationships that are of value, we start and finish by giving thanks. CCAT member Harold Robinson shares the acknowledgement he uses at the Alberta Energy Regulator:

As we continue to work at truth and reconciliation, it is good protocol to thank our hosts. We thank the First Nations, Metis, and Inuit peoples for hosting us. We thank First Nations, Metis and Inuit peoples for safeguarding and sharing their cultures, ceremonies, and knowledge. We acknowledge the unbreakable ties these First Peoples have to the lands we now call Alberta. We are thankful for Treaties 6, 7 and 8, and for the untold benefits Albertans and Canadians enjoy because of Treaty. We are thankful for all these things, and especially grateful for the perseverance and patience of First Nations, Metis, and Inuit peoples as we reconcile and restore our partnership to that of mutual benefit and respect.

An organization’s website might also include a land acknowledgment. Reference link: For example: University of McGill and Legal Aid Ontario. Par example: L’Université McGill et Aide Juridique Ontario – 10.

1. The W̱SÁNEĆ Leadership Council, Resources for Settlers
2. Urban Indigenous Community Advisory Committee of the Toronto District School, Land Acknowledgement Protocol
3. University of Guelph Land Acknowledgement
4. For example: local friendship centre; Government of BC First Nations A-Z Listing; Native Land; Government of Canada First Nation Profiles Interactive Map; Whose land
5. For example, the Nation’s website may include pronunciation or language tools/recordings or you can call the Nation’s answering machine after hours.
6. IR4-6-2015-eng.pdf (publications.gc.ca)
7. For example: University of British Columbia Doing Land Acknowledgments; Trent University How to do a Land Acknowledgment; Canadian Bar Association Land Acknowledgements, Treaties and Land Claims; Native Land Territory Acknowledgment; Canadian Association of University Teachers Guide to Acknowledging First Peoples & Traditional Territory; Engineers Canada A guide to acknowledging First Peoples and traditional land
8. Traditional territory is lands within the territorial boundaries of a Nation, outside of treaty lands. This can apply to both Treaty and non-Treaty Nations.
9. For example: Guidelines for the Land Acknowledgements within Mississaugas of the Credit Nation Treaty Lands and Territory. See also Mississaugas of the Credit Logo Usage Guidelines for use of its logo on written documents.
10. For example: University of McGill and Legal Aid Ontario. Par example: L’Université McGill et Aide Juridique Ontario.

LANGUAGE AND CULTURE 

When a language dies so does the link to the cultural and historical past. Without that crucial connection to their linguistic and cultural history, people lose their sense of identity and belonging

Language is the foundation of a culture. For Indigenous oral societies, words hold knowledge amassed for millennia. A language also holds the stories, songs, dances, protocols, family histories and connections. Languages also often hold the community’s customary laws that were eroded by the policies of the Indian Act. As many communities move towards a return to self-government, this loss of laws and systems of governance means some communities don’t have that knowledge to draw upon.

1. The United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP] and the Truth and Reconciliation Commission [TRC] Report recognize Indigenous Peoples’ language rights and the link to culture and legal orders.
2. The residential school system broke connections to cultures, languages, and laws.
3. While the root of the decline in Indigenous languages lies in the Indian Act, it is compounded by the internet where English is the most common language.
4. “The UNESCO Atlas of the World’s Languages in Danger project reports that three-quarters of the [Indigenous languages in Canada] are ‘definitely,’ ‘severely’ or ‘critically’ endangered. The rest are classified as ‘vulnerable/unsafe’.”
5. Nunavut and the Northwest Territories recognize Indigenous languages as official languages.
6. Nova Scotia and Manitoba recognize Indigenous languages but not as official languages.
7. Federal law provides that a federal institution may provide access to services in an Indigenous language, “if it has the capacity to do so and there is sufficient demand for access to those services in that language”.
8. Stsmél̓qen, Ronald E. Ignace, is the first Commissioner of Indigenous Languages appointed under the 2019 federal Indigenous Languages Act, enacted in response to the Calls to Action.
9. In 2021:
   • Just over half of First Nations people who speak an Indigenous language lived in the Prairie provinces.
   • Among the provinces, Quebec was home to the most First Nations people who can speak an Indigenous language.
   • Nationally, First Nations people in the Northwest Territories were the most likely to speak Indigenous languages (34.3%).
   • The number of Indigenous people in Canada who reported that they could speak an Indigenous language well enough to conduct a conversation declined for the first time since comparable data started being collected in 1991.
   • 58% of Inuit reported speaking an Indigenous language. There was a small increase in the number of Inuit reporting speaking Inuktitut. However, there were large declines in the endangered Inuit languages of Inuvialuktun and Innuinaqtun.
   • The number of Indigenous speakers of Haisla, Halkomelem, Heiltsuk, and Michif all grew by a third or more.

Introductory quotation: https://www.ictinc.ca/blog/why-is-it-important-to-protect-revitalize-indigenous-languages.

(1) UNDRIP, article 13(1) (2007). TRC, Final Rreport, p. 74.

(2) TRC, Final Report, p. 46.

(3) https://www.ictinc.ca/blog/why-is-it-important-to-protect-revitalize-indigenous-languages.

(4) https://canadiangeographic.ca/articles/mapping-indigenous-languages-in-canada/.

(5) https://www.nunavutlegislation.ca/en/media/1842; https://www.nunavutlegislation.ca/en/media/1822; https://www.nunavutlegislation.ca/iu/media/1842 https://www.nunavutlegislation.ca/iu/media/1822. https://www.justice.gov.nt.ca/en/files/legislation/official-languages/official-languages.a.pdf.

(6) https://nslegislature.ca/sites/default/files/legc/statutes/mi’kmaw%20language.pdf; https://web2.gov.mb.ca/bills/39-4/pdf/b024.pdf.

(7) https://laws-lois.justice.gc.ca/eng/acts/i-7.85/page-1.html.

(8) https://commissionforindigenouslanguages.ca/about. See calls to action 13-15. https://commissionforindigenouslanguages.ca/fr.

(9) https://www12.statcan.gc.ca/census-recensement/2021/as-sa/98-200-X/2021012/98-200-X2021012-eng.cfm. See also First Nations people, Métis and Inuit in Canada (statcan.gc.ca).

INQUIRING MINDS WANT TO KNOW

Canada has made more than 350 inquiries or commissions into all sorts of issues since confederation.  The goal of an inquiry is to fully and impartially investigate issues of national importance.  Inquiries make non-binding findings and recommendations. Here is a flavour of some of Canada’s commissions by ethnic group.

Choose a report to see Canada’s concerns, objectives, and process.

Harmful content advisory: Many of these reports reflect colonial and racist views, including racist language to describe Indigenous Peoples, in particular First Nations and Métis Peoples, as well other groups of people who were the subject of such commissions.