Indigenous law vs. Aboriginal law: A Short Resource

https://www.youtube.com/watch?v=wiEAMiVxdko

Wahkohtowin Law and Governance Lodge video, Indigenous vs. Aboriginal Law (2024)

By Hero Laird

What is Indigenous law? What is Aboriginal law? One thing is certain - they are not the same thing. 

Sometimes Indigenous and Aboriginal law are conflated. Each are important and distinct within our legal system, so the Wahkohtowin Law and Governance Lodge created a short video on Indigenous Law vs. Aboriginal Law to outline these distinctions. 

Indigenous law is law rooted in Indigenous communities and upheld by Indigenous Peoples. The work of the Lodge is to uphold Indigenous law by supporting community led projects, accessible legal education, and the development and amplification of wise practises and approaches. Indigenous law is at the heart of this work. 

Like all societies, Indigenous societies have - and have always had - law. Specific instances of Indigenous law (e.g. Cree, Dene, Métis, Mi’kmaq, Tŝilhqot’in law) address a huge range of issues, including safety, fairness, relationships, decision-making and dispute resolution. It is law that is living today, not just in the past. It is not just custom, restorative justice or protocols, although it can include these along with many other resources to develop and access law. It may have elements of deeply rooted Indigenous legal traditions as well as other legal sources, like state law or international law.

Aboriginal law - state law that applies to and impacts Indigenous people - does often need to be engaged with when considering aspects of Indigenous laws, such as implementation and enforcement. Aboriginal law includes s 35 of Canada's Constitution, Canadian statues like the Indian Act, s 718.2(e) of the Criminal Code ("Gladue"), and even elements of international law like The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 

Aboriginal Law image from Wahkohtowin Law and Governance Lodge video, Indigenous vs. Aboriginal Law (2024)

There are points of overlap between Indigenous and Aboriginal law. For example, laws for Indigenous child and family wellbeing created by Indigenous nations in the past and today can be Indigenous law. The federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families (also known as C-92) is Aboriginal law that recognizes this Indigenous law, affirming Indigenous jurisdiction over child and family services. C-92 does not create Indigenous law, but it can support the Indigenous law of Nations in relation to the wellbeing of their children. Mi’gmaq legal scholar Naiomi Metallic refers to this as “legislative reconciliation." Many communities, practitioners, lawyers and academics are navigating and changing the relationships and overlaps between Indigenous and Aboriginal law. This is complex and often difficult work with profound impact on communities and loved ones. The unanimous decision of the Supreme Court of Canada in the C-92 Reference case provides one starting point for considering C-92 as a place where Indigenous and Aboriginal law connect.

Interested in learning more? There are some excellent online resources about the difference and relationship between Indigenous and Aboriginal law, including from law schools, such as Dalhousie, Queen’s University Library and TRU, as well as legal organizations, such as the CBA and Lexpert. The WLGL video also provides a short list of resources.