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Indigenous Law in Canada

“Indian Law” by Anishinaabe Artist Roy Thomasi

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Prologue

I was asked if I could write an article on Indigenous law in

Canada. This happens to be a complex and evolving subject. I

have chosen to approach the subject in a historical fashion,

tracing developments as they emerged in Canadian history.

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Pre=Contact Indigenous Law

Indigenous - European relationships during the early years of contact in the 17th and 18th

centuries were strongly influenced by Indigenous legal orders. One example of an Indigenous

approach to societal relationships was recorded in in 1650 by the Jesuits about an incident

between the Nippissings and the French:

A French drummer boy wounded a Nippissing brave. The Nippissings demanded:

‘Behold, one of thy people has wounded one of ours; thou knowst our custom

well; given us presents for the wound.’ The French refused to follow native

custom and promised to punish the boy by whipping. The Nippissings were

horrified and sought mercy alleging ‘ that it was only a child, that he had no

mind, that he did not know what he was doing.’ One Nippissing threw his blanket

over the bay saying: ‘Strike me, if thou wilt, but not strike him.’ii

British Adoption of Indigenous Treaty Making

Indigenous Nations in eastern Canada managed their relationships with neighbouring

tribes by treaties that set out the desired relationships, treaties that called for periodic renewal

and adjustment. This practice was adopted by the British in their early interactions with the

Indigenous tribes.

The British and Mi’kmaq entered into the peace and friendship Treaty of 1752 in what is

now Atlantic Canada. It called for a cessation of hostilities, acknowledgement of Mi’kmaq rights

of hunting and fishing, trade arrangements and recourse to English courts for resolution of civil

disputes.

The Royal Proclamation of 1763 set out the British claim to land in North America. The

Royal Proclamation specifically provided for continuation of the treaty making process:

“that the several Nations or Tribes of Indians with whom We are connected, and who

live under our Protection, should not be molested or disturbed in the Possession of such

Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us,

are reserved to them, or any of them, as their Hunting Grounds.”iii

The Proclamation went further in stating:

“if at any Time any of the Said Indians should be inclined to dispose of the said Lands,

the same shall be Purchased only for Us, in our Name, at some public Meeting or

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Assembly of the said Indians, to be held for that Purpose by the Governor or

Commander in Chief of our Colony respectively within which they shall lie:”iv

The following year, Sir William Johnson, British Superintendent for Indian Affairs, met with

some 2,000 delegates from 24 Indigenous Nations at Niagara to inform them of the1763 Royal

Proclamation. He presented the assembled Indigenous Nations with the 1764 Covenant Chain

Wampum.v

The 1764 wampum centrally shows two human figures, representing

the English and the Indigenous Nations with hands joined while each

figure’s other hand holds onto two joined six-sided symmetrical

patterns that represents life going on in their respective nations and

among their people.

Sir William Johnson, when presenting the Covenant Chain stated:

“You have now been here for many days, during which time we have frequently met to

renew and strengthen our engagements and you have made so many promises of your

friendship and attachment to the English that there only remains now for us to exchange

the great belt of the Covenant Chain that we may not forget our mutual engagements. I

now therefore present you with the great belt by which I bind all your western nations

together with the English and I desire that you take fast hold of the same and never let it

slip to which end I desire that after you have shown this belt to all Nations that you will

fix one end of it with the Chippewas at St. Mary’s while the other end remains at my

house and, moreover, I desire that you will never listen to any news which comes to any

other quarter. If you do it, it may shake the belt.”vi

The Wampum Belt is interpreted as a visual representation of a treaty relationship that confirms

the terms of the Royal Proclamation and the agreement of the Nations to that Covenant Chain.

The Historic Indian Treaties

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The treaties that followed the 1763 Royal Proclamation became focussed acquisition of

land by the British from the Indigenous tribes. In 1850, two treaties dealt with large scale land

surrenders by the Indigenous tribes of Lake Huron and Lake Superior in return for annual

annuities, establishment of Indian Reserves, confirmation of hunting and fishing rights, and other

benefits.

Following were the historic numbered Treaties 1 to 11, extending westward from the

Great Lakes to northwestern British Columbia and the northern territories. As the treaties moved

westward, the Indigenous tribes required additional provisions such as medical services and

economic assistance in the face of epidemics and drastically changing economy.

While the wording of the treaties referred to land surrenders, the Indigenous oral versions

of these treaties recount agreements to share land rather than cessions of land.

Recognition of Indigenous Laws

In 1867, the Quebec Superior Court recognized the validity of a Cree traditional

marriage between a fur trader and his Cree wife in the Athabasca region. The Court held the

English common law marriage prevailing in the Hudson’s Bay territory did not apply to the

Indigenous people nor did it supersede or abrogate the laws, usages, and customs of the

Aborigines.vii Similarly, in an 1961 Inuit adoption case, Justice Sissons of the Northwest

Territorial Court in held:

“I think adoptions “made according to the laws of the Territories” include

adoptions in accordance with Indian or Eskimo adoption.”viii

Indigenous laws of governance and adoption were recognized in statute law as where the

chief or council is chosen by the custom of the Indian band or where an Indian custom adoption

occurs.ix

Indigenous Peoples and Canadian Statute Law

The 1867 British North America Act established Canada as a separate Dominion

consisting of federal and provincial governments. “Indians and lands reserved for Indians” were

assigned to federal jurisdiction. The federal Indian Act governed virtually every aspect of Indian

life: Indian status, Indian lands, education, estates, Indian trust funds and much more. Federal

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Indian policy was assimilationist, at one point even making it an offense for Indigenous First

Nations to retain lawyers to advance their claims against the government in the courts.x

Governmental control of Indigenous matters began to weaken as Indigenous Nations

began to vigorously assert their rights in the 1960’s. Such struggles had been going on for the

past century but the 1960’s saw the emergence of modern First Nations leadership and

administrations. When the federal government proposed the elimination of Indian status in its in

a 1969 White Paperxi, the Indigenous Nations across Canada universally rejected the White

Paper culminating with the Alberta Indian Association Red Paper assertion that Indians were

‘Citizens Plus’.xii

The Turning Point

The Nisga’a in British Columbia had been asserting they had Aboriginal title to their

lands since the early 1900’s. In 1971 the Supreme Court of Canada issued its decision

recognizing the concept of Aboriginal title existed in Canadian Law.xiii Calder was a turning

point in the importance of Indigenous law in Canada. While the historic numbered treaties

extended from Ontario to Alberta, there were few treaties in British Columbia, Quebec, the

Atlantic provinces and the northern territories, leaving questions of lands and resources as

unfinished business between Indigenous peoples and the Crown.

Calder had been dismissed on a legal technicality, but the decision led to other cases. In

its 1997 decision on Delgamuukw, the Supreme Court held that Indigenous oral history had to be

considered in deciding questions of Aboriginal titlexiv and finally, in 2014 Tsilhqot’in decisionxv

the Supreme Court expressly recognized the Aboriginal title of the Indigenous claimants.

Modern-Day Treaties

Because of the Calder decision, federal and provincial governments began to negotiate

new treaties in regions where Aboriginal title had not been extinguished under the federal

government’s Comprehensive Claims Policy.xvi In 1975, the Cree and Inuit of northern Quebec

signed the James Bay and Northern Quebec Agreement with the federal government and

Quebec.xvii In 1993, the Yukon First Nations signed an land claims umbrella Final Agreement

with the federal and Yukon governments.xviii Other land claim settlement agreements were

signed in the northern territories, including the Inuit agreement to establish the new territory of

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Nunavut in the eastern artic.xix In 2000, the Nisga’a finally settled their Aboriginal title land

claim with the federal and British Columbia governments. It was the fourteenth modern-day

treaty in Canada negotiated since 1976.xx These modern-day treaties are much more

comprehensive than the numbered treaties and contain governance law making and justice

provisions.

Section 35 of the Constitution Act 1982

During the 1980’s the federal and provincial governments were engaged in patriating the

Canadian constitution. Canadian’s founding document, the British North America Act, was a

statute of the British Parliament. Consideration was given to patriating the BNA Act without

reference to Canada’s Indigenous peoples. Indigenous people objected to this approach and this

led to the inclusion of section 35 in the new Constitution Act 1982. That section reads:

35(1) The existing aboriginal and treaty rights of the Aboriginal people in Canada are hereby recognized and affirmed. (2) In this Act, “Aboriginal Peoples of Canada “includes the Indian, Inuit and Metis Peoples of Canada.

Recognition of Pre-Confederation and Historic Treaty Rights

Also following Calder, the earlier mentioned 1752 peace and friendship treaty between

the Mi’kmaq and the British was recognized as a binding treaty by the Supreme Court of Canada

in 1985. xxi In 1760, the British had confirmed the Hurons, who had been allied with the French

in the Seven Years English-French War, could withdraw from the conflict, continue the free

exercise of their religion, customs and have the liberty of trading with the English. This

agreement was similarly confirmed as a valid treaty by the Supreme Court in 1990.xxii

The treaty right to hunt secured under the 1899 Treaty No. 8 was also considered by the

Supreme Court in its 1996 Badger decision.xxiii The question was whether the treaty right to hunt

for food was effectively extinguished on being merged and consolidated in the 1930 Natural

Resources Transfer Agreement when Canada transferred natural resources to the Province of

Alberta. The Supreme Court held the treaty right was not extinguished. It stated:

At the outset, it may be helpful to once again set out some of the applicable principles of interpretation. First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. Second, the honour of the Crown is always at stake in its dealing

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with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. Fourth, the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be "strict proof of the fact of extinguishment" and evidence of a clear and plain intention on the part of the government to extinguish treaty rights.

Aboriginal Rights

In 1990, the Supreme Court of Canada issued its decision in Sparrowxxiv, a Coast Salish

fishing case where federal fishing regulations had curtailed the net fishing methods of a Coast

Salish fisherman who asserted he had an Aboriginal right to fish for food and ceremonial

purposes. There was no issue that the Coast Salish people fished from times immemorial, but the

issue turned on the word ‘existing’ in section 35(1) of the Constitution Act 1982. The Supreme

Court held that ‘existing’ meant ‘not extinguished’ and extinguishment had to be clear and

certain. Regulation was not extinguishment.

Duty to Consult

With Aboriginal and treaty rights enshrined in section 35(1) of the Constitution Act 1982,

actions by Canadian federal and provincial governments that can affect the exercise of those

constitutionally protected rights now trigger a duty to consult with the Indigenous groups

affected.

The ‘Duty to Consult’ principle was enunciated in Haida Nationxxv. The Haida claimed

Aboriginal title to the lands and waters of Haida Gwaii on Canada’s Pacific coast. In 1999, the

British Columbia Minister of Forests had transferred a timber licence a large forestry company.

The Supreme Court declared that both the British Columbia government and the company have

a duty to consult and accommodate the Haida with respect to harvesting timber from the area as

the activity would potentially impact on the Haida Aboriginal title claim. The Court held the

scope of the duty is proportionate to a preliminary assessment of the strength of the case

supporting the existence of the right or title, and to the seriousness of the potentially adverse

effect upon the right or title claimed. The Crown is not under a duty to reach an agreement;

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rather, the commitment is to a meaningful process of consultation in good faith. The controlling

question in all situations is what is required to maintain the honour of the Crown and to effect

reconciliation between the Crown and the Aboriginal people with respect to the interests at

stake.

In 2000, the federal government approved a winter road to run through the Wood Buffalo

National Park impacting the Mikisew Cree who had a First Nation reserve in the park. The

Mikisew objected the road because it would impact their traditional lifestyle central to their

culture. The Supreme Court of Canada noted Treaty No. 8 gave the Crown the right to take up

lands surrendered under treaty for purposes such as the winter road. Even so, the federal

government was under an obligation to inform itself of the impact the project would have on the

exercise of the Mikisew treaty hunting, fishing and trapping rights and to communicate its

findings to the Mikisew. The government must then deal with the Mikisew in good faith with the

intention of substantially addressing their claims.xxvi

Since Aboriginal and treaty hunting, fishing, and gathering rights extend across the

breath of Canada, the duty to consult is frequently triggered.

Indigenous Justice Issues

George Copway, a Mississauga (a branch of the Ojibway), wrote in 1850:

Among the Indians there have been no written laws. Customs handed down from

generation to generation have been the only laws to guide them. … this fear of the

nation’s censure acted as a mighty band, binding all in one social honourable

compact. They would not as brutes be whipped into duty. They would as men be

persuaded to the right.xxvii

The colonial experience of Indigenous peoples in Canada has been on of repression and

marginalization. Indigenous religious and social ceremonies were banned, traditional systems of

governance were suppressed, passes were required to leave Indian Reserves and the Indian

residential school policy systematically sought to eradicate Indigenous values and culture. The

impacts of colonialism are manifested in the distressing poverty and intergenerational trauma

experienced in Indigenous communities.xxviii One facet of this colonial trauma was the increasing

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levels of violence in Indigenous communities, the excessive child apprehension and demeaning

welfare system,xxix and the overincarceration of Indigenous people in Canada’s jails and prisons.

The Royal Commission on Aboriginal Peoples found the Canadian criminal justice

system had failed the Indigenous peoples of Canada. The Commission found that the reason for

this failure was due to fundamentally different world views of Aboriginal and non-Aboriginal

people with respect to such elemental questions as what is justice and how is it to be achieved.xxx

Section 718.2(e) of the Criminal Code

Section 718 sets out the fundamental principles of sentencing in order to protect society

and contribute to respect for the law and maintenance of a peaceful society.xxxi The primary

considerations in sentencing are to denounce unlawful conduct and deter offenders from

committing offences.xxxii Notwithstanding these lofty principles and objectives, the reality is that

the criminal justice system contributes to the opposite outcome for Canada’s Indigenous peoples.

Indigenous offenders are overrepresented in Canada’s prisons and penitentiaries while

Indigenous communities continue to experience high levels of criminal conduct.

In response to the need for sentencing reform and, in particular, the overincarceration of

Indigenous people, the Canadian Parliament enacted sentencing amendments, more specifically

s. 718.2(e) which directs sentencing judges to have regard for:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.xxxiii

(emphasis added)

The meaning of the concluding phrase was considered by the Supreme Court in R v

Gladue.xxxiv The Court has interpreted that phrase as an instruction to sentencing judges

requiring them to:

1. have regard for the Indigenous offender’s background that has a bearing on that person’s commission of the offense; and

2. consider what Indigenous restorative justice measures that may be available in the Indigenous offender’s community that maybe engaged in fashioning a fit sentence.

This has led to ‘Gladue Courts’ where judges consider Gladue reports setting out the life

circumstances of Indigenous offenders in the sentencing process.

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Circle Sentencing

During the 1980’s and 1990’s, Indigenous justice workers and communities began

pressing for a different approach – that of Indigenous restorative justice. This began with circle

sentencing. The first reported decision on circle sentencing was the 1992 Yukon Territorial Court

decision in R. v Moses.xxxv This circle sentencing approach was adopted in many communities. A

Saskatchewan Provincial court judge set out the criteria used as:

• The accused must agree to be referred to the sentencing circle.

• The accused must have deep roots in the community in which the circle is held and from which the participants are drawn.

• That there are elders or respected non-political community leaders willing to participate.

• The victim is willing to participate and has been subjected to no coercion or pressure in so agreeing.

• The court should try to determine beforehand, as best it can, if the victim is subject to battered spouse syndrome. If she is, then she should have counseling made available to her and be accompanied by a support team in the circle.

• Disputed facts have been resolved in advance.

• The case is one in which a court would be willing to take a calculated risk and depart

from the usual range of sentencing.xxxvi

Peacemaking

In the 1990s the Tsuu T’ina Nation in Alberta proposed establishment of a First Nation’s

court on the Tsuu T’ina Indian Reserve. It involved establishing a provincial court on to Reserve

with all-Indigenous members of the Court: judge, prosecutor, Crown prosecutor, duty counsel,

court clerks, court worker and probation officers. The Court would operate in conjunction with a

peacemaking initiative delivered by the Tsuu T’ina Peacemaker’s Office. xxxvii The peacemaker

process involved a peacemaking circle lead by a community peacemaker which addressed the

factors which led to the harmful conduct and worked out a healing process for the offender, those

harmed and the community.

Healing to Wellness Courts

Elsipogtog is the largest Mi’kmaq First Nation in New Brunswick with approximately

2500 members living on its two reserves.xxxviii It spent well over a decade moving towards its

own healing to wellness court. The goals of the Court are:

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- Reduce the revolving door of recidivism in re-offending through the use of alternative justice approaches, including community based justice, therapeutic or problem solving approaches in restorative justice;

- Address underlying issues such as addictions, FASD and/or mental health issues for both youth and adults;

- Enhance the safety of the community by providing individuals who participate in the HTW [Healing to Wellness] Program with supports that reduced their risk to reoffend; and

- Address the needs of victims adequately.xxxix

Indigenous Law

Rupert Ross was a Crown prosecutor in northwestern Ontario who began to understand that

Indigenous people had a different approach to justice. He spent two years travelling across

Canada speaking with Indigenous elders and justice workers. He wrote:

So there it was: within traditional aboriginal understandings, a justice system

involved far more than simply controlling how disputes were handled after they

broke out. Instead the primary emphasis was on teaching individuals from birth

how to live together in ways that avoided or minimized them in the first place.

…

Slowly, I began to gain some understanding about why I always heard phrases

like “living a good life” or “doing things the right way”: people were talking

about what “law” and “justice” really meant. They had little to do with simply

responding to disorder after it occurred or with creating long lists of acts which

were known as “offenses” Instead they involve proactive teachings about how

people should approach the living of their lives, as individuals and as members

of a group. At this point I want to say something as plainly as I can: despite

initial reluctance, I had come to the conclusion that traditional teachings formed

a sophisticated body of community governance that has an equal right to be

called “law.xl

Indigenous Legal Orders

Indigenous justice is continuing to develop. There are three footings upon which this

process continues. First, there is an evolving Indigenous restorative process arising out of the

interaction of Indigenous communities and the Canadian criminal justice system such as

peacemaking and healing to wellness courts. Second, there is the legislative thrust based on the

modern treaty governance provisions that establish jurisdiction for Indigenous legislation, courts

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and administration of justice. Third, there is the emerging legal and academic literature on

Indigenous based governance and justice by Indigenous scholars researching and reassembling

Indigenous law from the fundamental concepts embedded in many Indigenous cultures. Saulteau

law professor Val Napoleon uses the term “legal order” to describe law embedded in social,

political, economic, and spiritual institutions and “Indigenous legal traditions” when referring to

Indigenous legal protocols and laws. From that starting point she examines different Indigenous

Nations and their Indigenous legal orders.xli Anishinaabe law professor John Burrows, Canada

Research Chair in Indigenous Law, now leads a university level program for an Indigenous law

degree, the world’s first.xlii

In result, the only guidance one can give on contemporary Indigenous law is to ‘Watch

this Space – More is to come!’

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Epilogue

I have endeavoured to briefly sketch out Indigenous law in

Canada. These are my thoughts, and any errors, omissions or

misinterpretations are mine alone. Hopefully, I have conveyed a

sense of the scope, complexity and dynamic nature of Indigenous

law in an intelligible manner for the readers.

Hon. Leonard S. (Tony) Mandamin IPC xliii

Edmonton, Alberta, Canada

2020/07/10

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i The artist, Roy Thomas explained why he titled his work “Indian Law”. He said, “the tall straight pines represent ‘Honesty’, the rocky outcrop represents ‘Courage’, the grass represents ‘Kindness’, and the moose represents ‘ sharing’. “ The latter two are aspects of ‘Love’. These are part of the seven sacred Anishinaabe teachings: honesty, courage, love, humility, truth, respect, and wisdom. These are the laws that are set out to guide Anishinaabe relations between themselves and other beings. ii The Jesuit Relations and Allied Documents New York: Pageant Book Company 1959 6: 119-22

iii Royal Proclamation of 1763 iv Ibid v http://anishinabeknews.ca/2014/07/31/first-nations-commemorate-250th-treaty-of-niagara-anniversary-with-two-day-event/ vi https://www.manitoulin.ca/the-niagara-treaty-was-pivotal-to-canadas-existance/

vii Connelly v Woolrich (1867), 17 RJRQ 75 (Qc SupCt) viii Re Adoption of Kattie E7-1807 [1961] NWTJ No 2, 32 DLR (2d) 686

ix Indian Act R.S.C. , 1985, c. I-5 s.2 x Indian Act R.S.C. 1985, c I-5 xi Statement of the Government of Canada on Indian Policy (The White Paper 1969) xii Indian Association of Alberta, Citizens Plus, 1969 xiii Calder et al v Attorney General of British Columbia, [1973] S.C.R. xiv Delgamuukw v British Columbia [1997] 3 S.C.R. 1010 xv Tsilhqot’in Nation v British Columbia [2014] 2 S.C.R. 256 xvi https://www.rcaanc-cirnac.gc.ca/eng/1100100030577/1551196153650 xvii 1975 James Bay and Northern Quebec Agreement xviii 1993 Yukon Umbrella Final Agreement xix 1993 The Nunavut Land Claims Agreement xx 2000 Nisga’a Final Agreement xxi Simon v the Queen, [1985] 2 S.C.R. 387

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xxii R. v. Sioui [1990] 1 S.C.R. 1025 xxiii R. v Badger [1996] 1 S.C.R. 771 xxiv [1990] 1 S.C.R. 1075 xxv Haida Nation v British Columbia [2004] 3 S.C.R. 511 xxvi Mikisew Cree First Nation v Canada (Minister of Heritage) [2005]3 S.C.R. 388 xxvii Copway, George. The Traditional History and Characteristic Sketches of the Ojibway Nation. Charles Gilpin. 1850. Reprinted Prospero Books. Canada. 2001. 144-145 xxviii Hawthorn H.B. A Survey of the Contemporary Indians of Canada. Indian Affairs Branch. 1966.

xxix Cindy Blackstock. The Complainant: The Canadian Human Rights Case on First Nations Child Welfare. (2016)

62:2 McGill LJ 285

xxx Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide. Canada Communications Group – Publishing. Ottawa. 1996 xxxi Criminal Code R.S.C. 1985 c. C-46 s. 718 xxxii Ibid s. 718 (a), (b), s. 718.02 xxxiii Ibid s. 718.2(e) xxxiv R. v Gladue [1999] 1 S.C.R. 688 xxxv R. v Moses 71 C.C.C. (3rd) 347 xxxvi R. v Joseyounen [1996] 1 C.N.L.R. 182 xxxvii Mandamin L.S. Tony Judge, Starlight Ellery, Monica One-spot. Peacemaking and the Tsuu T’ina Court - Justice as Healing. Living Press. St. Paul. 2005 at p. 349 xxxviii The Elsipogtog material was first canvassed in an earlier paper by the writer Advancing Indigenous Restorative Justice in for Professor Darcy Lindberg in April 2020 xxxix Public Safety Canada. Healing to Wellness Court. See https://www.publicsafety.gc.ca/cnt/cntrng-crm/crm-prvntn/nvntr/dtls-en.aspx?i=10169 xl Ibid p. 255-258 xli Napoleon, Val. Thinking About Indigenous Legal Orders. National Centre For First Nations Governance. 2007 xlii https://en.wikipedia.org/wiki/John_Borrows xliii ‘Indigenous Peoples Counsel’ is an award bestowed on the Honourable L. S. Mandamin by the Indigenous Bar Association in 2019 upon his retirement from the Federal Court.