Indigenous Legal Methodologies

The Indian Act (1876)

Created to amalgamate all federal legislation on "Indians" and defines who is an Indian, membership, reserve rights, governance, Chief and Council powers, and property distribution.

Three Factors of Indigenous Identity

1. Self-identification

2. Community Acceptance

3. Ancestral or Historical Connection

Indian Status

An individual's legal status as an Indian, as defined by the Indian Act. "Non-status Indians" are denied political rights and participation in reserve or land-related decisions.

"Pretendians"

Someone falsely claiming Indigenous identity, taking resources/opportunities meant for Indigenous people.

How were the Métis originally thought of?

As children of intermarriage between First Nations women and European fur traders/fishermen, raised in maternal (or sometimes paternal) traditions.

R. v. Powley (2003)

Recognized Métis food-hunting rights under s. 35, provided a legal definition of Métis, and modified the Van der Peet test for Métis communities.

Who has a Metis Right under s.35(1)? (Powley)

1. Identification of the Historic Rights-Bearing Community

2. Identification of the Contemporary Rights-Bearing Community

3. Verification of the claimants membership in the relevant contemporary community, including:

- Self-identification (not recent)

- Ancestral connection to a historic Métis community

- Accepted by the modern community

What does Indigenous "Mobility" refer to?

The movement of Indigenous peoples—physically across territories, conceptually through cultural learning, and temporally across generations—rooted in relationships with land, community, and traditions.

Campbell v British Columbia (AG) (2000)

Court recognized that Aboriginal rights, including self-government akin to legislative power, exist as unwritten constitutional values outside the 1867 division of powers.

What is an "essentialist" understanding of Indigenous law?

A court's expectation that Indigenous law is static and unchanging, ignoring its evolution and adaptability.

Edwards v Canada (1930

It supports resisting “frozen in time” interpretations, showing that the Constitution is a “living tree” and must allow Indigenous law to evolve like common and civil law ("Persons Case")

Section 35 of the Constitution Act, 1982

Recognized and affirmed Aboriginal and treaty rights, including Indian, Inuit, and Métis peoples; included land claims and gender equality protections.

White Paper (1969)

Proposed abolishing the Indian Act, Indian status, and reserve lands to assimilate Indigenous peoples under the Canadian state.

R v Secretary of State for Foreign and Commonwealth Affairs (1982)

UK no longer responsible for Indigenous treaties; Canada assumed full responsibility under its own state.

Indigenous "Unwritten" Laws

Law transmitted through oral traditions and physical records like wampum belts (Haudenosaunee) or quipu (Andean), which serve as evidence, not the law itself.

Wampum Belts

Used by the Haudenosaunee to record agreements like the Great Law of Peace; serve as physical, mnemonic, ceremonial, and legal records of treaties and diplomatic agreements.

Haudenosaunee

A confederacy of Indigenous nations in northeastern North America with a shared constitution, the Great Law of Peace; recognized by the US Congress (1988) as an example of constitutional influence.

Three Principles of the Great Law of Peace

1. Good Mind (rationality and peace)

2. Peace/Health (community well-being)

3. Strength/Unity/Power (cohesion, stability, authority).

Quipu

Andean record-keeping with knotted strings, mainly for numbers. Records information, not the law itself.

Four Eras of Treaty-Making in Canada

1. Pre-Contact Era

2. The "Peaceful and Friendship" Era

3. The Confederation

4. The Modern Era

Royal Proclamation (1763)

Recognized lands to the West of the colonies as Indian territories ; prohibited colonial governors from buying land from Indigenous peoples (required specific protocals)

Treaty of Niagara (1746)

Understood by Indigenous people as a binding oath of the British to the terms of the Royal Proclamation, forming the foundation for future treaties

The Pipe

Sacred item symbolizing truth, honour, and justice. Used in treaty ceremonies; breaches were profound violations of trust. Functions as law and carries spiritual significance.

Confederation-Era Treaties

Crown sought land for settlement; Indigenous nations understood treaties as affirming sovereignty and shared resource use. Numbered Treaties (1-11) cover most of Canada, with major gaps between oral promises and written texts.

Two Row Wampum

Symbolizes two nations coexisting peacefully without interference; mutual recognition of inherent freedom of movement (parallel vessels)

Dish with One Spoon (1701)

Ended conflict between Anishinaabe and Haudenosaunee; signifies that everyone has the right to live off the shared land and maintain viability of hunting grounds (spoon is rounded, not a weapon)

Four Orders of Anishinaabe Law

1. Sacred oral law (original instruction)

2. Traditional law kept by Elders

3. Customary law through land-based practices

4. Written temporal law aligned with the first three and interacting with Crown law

Anishinaabe

A group of related Indigenous nations (e.g., Ojibwe, Odawa, Potawatomi) from the Great Lakes region with shared language, culture, and legal traditions.

Treaty Interpretation Principles

Treaties should be liberally construed; ambiguities resolved in favour of Aboriginal signatories; courts must be sensitive to cultural/linguistic differences; rights are not frozen at the date of signature.

What is UNDRIP?

An international human rights instrument recognizing Indigenous rights to self-determination, lands, resources, and governance. Delineates individual and collective rights of Indigenous peoples; affirms Indigenous sovereignty and addresses historic/ongoing harms.

What is Free, Prior, and Informed Consent (FPIC)?

A principle under UNDRIP requiring Indigenous consent before decisions affecting their lands, resources, or cultural well-being.

Why does UNDRIP matter?

Recognizes Indigenous sovereignty and promotes reconciliation.

Duty to Consult

A Crown obligation to engage Indigenous communities when their asserted Aboriginal or treaty rights may be affected; scope depends on claim strength and potential impact.

Legal Pluralism

Coexistence of multiple legal systems in society.

Delgamuukw v BC (1997)

Established the test for Aboriginal Title (AT). Found trial judge erred in treatment of oral history and anthropological evidence

What rights does Section 35 of the Constitution Act, 1982 grant?

1. Treaty rights - rights guaranteed through historical treaties with Indigenous peoples

2. Aboriginal rights - practices, traditions, and customs integral to Indigenous cultures

3. Aboriginal title - collective ownership of traditional lands

Test to Prove Aboriginal Rights

1. Is there an "existing" Aboriginal right?

2. Has it been extinguished?

3. Has it been infringed?

4. Can the infringement be justified?

Consultation

The process of decision making that includes the participation of Aboriginal peoples

Accommodation

The outcomes of the consultation - more of a substantive right

Features of Aboriginal Title

Sui generis (unique); Inalienable (only surrendrable to the Crown); derived from occupation prior to sovereignty; held communally.

Proving Aboriginal Title (Delgamuukw Test)

(i) Land must have been occupied prior to sovereignty

(ii) Continuity (if the present occupation is relied upon)

(iii) Occupation must have been exclusive at sovereignty

Tsilhqot'in Nation v BC (2014)

First actual recognition of Aboriginal title by the SCC. Affirmed and refined the Delgamuukw test

Aboriginal Title Test Refinement (Tsilhqot'in)

Sufficiency, continuity, and exclusivity should be analyzed holistically; they are inquiries that shed light on whether title is established, not independent necessary elements.

Infringement Justification

To infringe AT, government action must have a compelling and substantial objective (e.g., economic development, forestry)It must also be consistent with the Crown's fiduciary obligation and requires that the duty to consult and accommodate be discharged

Honour of the Crown

A standard of fairness, honesty, and good conscience rooted in the Crown's reserve of justice; always at stake in its dealings with Aboriginal peoples.

Haida Nation v BC (2004)

Outlined the Duty to Consult owed by the Crown to Indigenous peoples

Delegation

The Crown may delegate the procedural aspects of consultation to third parties (e.g., industry proponents), but the Crown retains ultimate legal responsibility

The Truth and Reconciliation Commission (TRC)

Identified the need for integration of Indigenous Legal Traditions into Canadian law as part of reconciliation.

TRC Call to Action 27

Law societies must ensure lawyers receive cultural competency training

TRC Call to Action 28

Law schools must require all law students to take a course on Aboriginal people and the law

Restorative Justice and Sentencing (s. 718.2(e))

Directs that imprisonment should be a last resort for all offenders. Focuses on restitution, healing, and reintegration rather than punishment.

R v Gladue (1999)

Sentencing must account for the unique circumstances of Indigenous offenders, including historical and systemic factors.

Windigo (Wetiko)

A Cree and Anishinaabe figure symbolizing destructive, violently consumptive behaviour; now used as a metaphor for greed and harm to others or the environment.

What are the three myths about Gladue?

(1) Gladue doesn't affect sentencing for serious offences.(2) Prison "works" for Indigenous people.

(3) Indigenous over-incarceration is too complex to address through Gladue.

How are Gladue Reports different from Pre-Sentence Report?

- Gladue reports provide cultural and historical context and explore community alternatives.

- PSRs focus mainly on risk assessment using criminogenic tools.

Mikisew Cree v Canada (2018)

Confirmed that there is no enforceable duty to consult Indigenous communities regarding the generation and enactment of legislation (due to Parliamentary sovereignty)

Standard of Review (DTCA)

The sufficiency of consultation/accommodation is generally reviewed on a standard of reasonableness (deferential to the adjudicator)

Overrepresentation

Indigenous people are highly overrepresented in Canadian prisons (e.g., comprising 17-19% of federal penitentiary admissions while representing 3% of the population)

Gladue Principles

Judges must consider:

(A) The unique systemic or background factors (e.g., residential schools, poverty, substance abuse, colonialism legacy) and

(B) appropriate sentencing procedures/sanctions related to the offender's heritage

R v Ipeelee (2012)

Reaffirmed that Gladue is not irrelevant in cases involving serious or violent offences, even for long-term offenders, and emphasized the need to account for systematic disadvantages.

Civil (Dis)obedience (Borrows)

Pragmatic, often non-violent action used to resist domination and pry open democratic spaces. Bracketed (dis)obedience signifies that breaking Canadian law may be obedience to Indigenous law or Canada's own highest legal ideals.

Blockades as Practice

Blockades are intentionally spatial practices that challenge the mobility of settlers, reversing and challenging colonial constraints on Indigenous mobility

What are the main arguments against extinguishing Indigenous self-determination and governance?

Conquest, discovery, occupation, adverse possession, assertion of sovereignty, and sovereign incompatibility — all fail factually and legally in Canada.

What is personal jurisdiction?

Indigenous laws that apply to their citizens wherever they go in Canada (e.g., child welfare, guardianship).

What are the two types of Indigenous jurisdiction?

Territorial and personal jurisdiction.