Abstract
Undeniably, indigenous peoples within Canadian borders have advantages that indigenous peoples in many other parts of the world do not. Canada recognises First Nations, Inuit, and Métis peoples in its constitution. The Supreme Court of Canada has progressively strengthened Aboriginal authority over land, waters, and natural resources. Since the early 1990s, the provincial and federal governments of Canada have been involved in modern treaty-making to further enshrine the rights of Aboriginal communities with whom the Crown lacked historical agreements. And while progress has been variable, Canada is engaged in a process of reconciliation for some of the worse aspects of its colonial history. In 2008, for example, Canada offered an apology on behalf of Canadians for the Indian residential schools system and signed the Indian Residential Schools Settlement Agreement, providing redress to victims and establishing the Truth and Reconciliation Commission of Canada. As the former UN Special Rapporteur on the Rights of Indigenous Peoples summarises in his 2013 country report, ‘Canada’s relationship with the indigenous peoples within its borders is governed by a well-developed legal framework that in many respects is protective of indigenous peoples’ rights’ (Anaya 2013, p. 5).
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Notes
- 1.
This is not to say that colonisation in Canada was any less brutal or insidious than it was elsewhere. The settlement of Canada by European immigrants involved, among other practices, land grabs and other forms of asset stripping; the suppression of Indigenous ceremonies, languages, and other cultural practices; discrimination in access to employment; the removal of children to residential schools (where many were abused and large numbers died), and other injurious practices. See, for example, MacDonald and Steenbeek (2015).
- 2.
The Canadian Constitution recognises three groups of Aboriginal peoples: First Nations peoples (‘Indians’), Inuit, and Métis (Constitution Act 1982, Part II, s.35(2)).
- 3.
Among these are Delgamuukw v British Columbia ([1997] 3 S.C.R. 1010), Haida Nation v British Columbia (Minister of Forests) ([2004] 3 S.C.R. 511), and Tsilhqot’in Nation v British Columbia ([2014] 2 S.C.R. 256), which, respectively, established aboriginal title as a proprietary right, acknowledged Canadian governments’ formal duty to consult and to accommodate Indigenous interests, and affirmed aboriginal communities’ right to use, manage, and economically benefit from ‘unceded territory’. Also see Racette (2018).
- 4.
- 5.
A similar (although less pointed) analysis can be found in Abele (2007), pp. 10–11.
- 6.
In fact, one of the definitions of ‘bylaw’ is ‘an ordinance of a municipality or community’ (http://www.dictionary.com/browse/bylaw, date accessed July 25 2017).
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Legislation and Cases
British North America Act 1867 30–31 Vict., c.3 (U.K.).
Canada-Métis Nation Accord 2017.
Constitution Act 1867.
Constitution Act 1982.
Indian Act R.S.C. 1985, c. I-5.
Indian Act Amendment and Replacement Act, S.C. 2014.
Tekaia’torehthà:ke Kaianerénhsera (Akwesasne Court Law), Kaiahnehronsehra iehiontakwa 2016–01.
Wildlife Conservation Law, Kaiahnehronsehra iehiontakwa 2015–30.
Connolly v Woolrich [1867] 17 R.J.R.Q. 75.
Daniels v Canada (Indian Affairs and Northern Development) [2016] 1 S.C.R. 9.
Delgamuukw v British Columbia [1997] 3 SCR 1010.
Haida Nation v British Columbia (Minister of Forests) [2004] 3 S.C.R. 511.
Tsilhqot’in Nation v British Columbia [2014] 2 S.C.R. 256.
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Jorgensen, M. (2018). Contemporary First Nation Lawmaking: New Spaces for Aboriginal Justice. In: Hendry, J., Tatum, M., Jorgensen, M., Howard-Wagner, D. (eds) Indigenous Justice. Palgrave Socio-Legal Studies. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-60645-7_15
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