Researching the Rights of Indigenous Peoples in Canada

I’ve been meaning to write about how to research the rights of indigenous peoples in Canada for Slaw for the longest time because it seemed like a hot issue and I thought a guide to legal information resources might be useful. However, I was thwarted first by what was the right terminology to use. Indigenous peoples? Native peoples? Aboriginal peoples? Indians? First Nations? Would I offend by using the wrong words? And who am I, a non-Canadian, non-indigenous person to write a research guide anyway? Maybe someone else in Canada has already written a guide? (The answer is yes.). But the idea stuck with me. Then I was daunted by the potential breadth of the possible resources. But I still wanted to do it, so I started following a lot of Canadian indigenous law folks on Twitter. I found âpihtawikosisân’s tweets particularly interesting, and was very excited when I found out a couple of months ago that she had a book coming out soon on this topic. It’s now published (Chelsea Vowel, Indigenous Writes: A Guide to First Nations, Métis, and Inuit Issues in Canada (Highwater Press, 2016). And I am finally energized to write, so herewith is an imperfect attempt at a quick guide to researching the rights of indigenous peoples in Canada. Feedback welcome!

Terminology

From checking Indigenous and Northern Affairs Canada, I discovered that the correct official term is “Aboriginal peoples”:

“Aboriginal peoples” is a collective name for the original peoples of North America and their descendants. The Canadian constitution recognizes three groups of Aboriginal peoples: Indians (commonly referred to as First Nations), Métis and Inuit. These are three distinct peoples with unique histories, languages, cultural practices and spiritual beliefs.

A Canadian law librarian colleague further explained to me:

Though indigenous and aboriginal are often used interchangeably in Canada in reference to the peoples, indigenous law is recognized here as a different concept from aboriginal law. Aboriginal law has long-accepted constitutional, legislative, treaty, and Canadian common law dimensions. Indigenous law (sometimes referred to as indigenous legal orders), on the other hand, represents the laws and legal traditions of the various indigenous peoples of Canada. Some of these are in use in Canadian court practice today, for example, sentencing circles.

In his 2014 report on the situation of indigenous peoples in Canada (A/HRC/27/52/Add.1), UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, states that “aboriginal” is the terminology commonly used in Canada.

However, in 2011, the Government of Canada changed the name of the Department of Indian Affairs and Northern Development to Aboriginal Affairs and Northern Development Canada (AANDC). But AANDC is now Indigenous and Northern Affairs Canada (INAC).

And Chelsea Vowel, a member of the Métis Nation of Alberta and an indigenous peoples advocate with an LLB from the University of Alberta, indicates in Indigenous Writes that, while there’s no overall agreement on acceptable terms, “Indigenous peoples” is used internationally, is more broadly applicable, and is her favorite term to use. So I’ll adopt her term going forward (including capitalizing the ‘I’).

Background Sources

Indigenous and Northern Affairs Canada’s website is useful to check when beginning your research and for updates on current issues as well. It has information on aboriginal land claims, environment and natural resources, education, housing, employment, preventing violence against Indigenous women and girls, reconciliation, Indian status, Canadian federal officials’ “duty to consult,” acts, agreements, treaty rights, and the national inquiry into missing and murdered Indigenous women and girls. The “Renewing the Relationship” page links to key documents such as the 2015 Final Report of the Truth and Reconciliation Commission (TRC), the 2005 Kelowna Accord, and the 1996 Report of the Royal Commission on Aboriginal Peoples. INAC has a treaty-making in Canada page with “Treaty Texts.”

Indigenous Writes (2016) covers the laws governing the status of Indigenous peoples in Canada – the Constitution Act, 1982 and the Indian Act—and related issues such as Indigenous women losing their Indian status if they marry a non-status man and non-Indigenous peoples self-identifying as Métis to claim Constitutional rights to lands and resources. The author also discusses the blood quantum rule, cultural appropriation, Indigenous use of intellectual property laws, Two-Spirit identities (Indigenous transgender individuals), the landmark Delgamuukw and Tsilhqot’in cases (recognition of Aboriginal title), non-benign myths about Indigenous peoples, the six-volume Truth and Reconciliation Commission of Canada (TRC) final report on the residential school system where at least 6,000 Indigenous children died, Canada’s Stolen Generations (between 1960 and 1990, 70-90% of Indigenous children in Canada were removed from their homes and placed into non-Indigenous homes), Inuit relocations, the issue of access to safe drinking water for First Nations communities, the five-volume report of the Royal Commission on Aboriginal Peoples, Indigenous lands, education, treaties, and treaty-making.

Background information on Indigenous peoples under Canadian law, and issues specific to Indigenous women, are also discussed in the Inter-American Commission on Human Rights (IACHR)’s 2015 report on Missing and Murdered Indigenous Women in British Columbia, Canada.

Research Guides

The University of British Columbia’s Aboriginal Law research guide is very comprehensive with great information about books, specialty databases, legislation, and case-law, and a special link to resources on the Delgamuukw aboriginal land title case, including transcripts and a virtual museum exhibit. Dalhousie University has an Indigenous Blacks & Mi’kmaq Initiative and David Michels’ Aboriginal Law LibGuide has extensive links with a special section on Indigenous Governance Resources. Anna Szot-Sacawa’s Aboriginal Law in Canada research guide at Bora Laskin is also quite complete and up-to-date. It includes research tips, descriptions of resources, along with narrative text. Its Introduction states:

Aboriginal law is that part of our legal system that regulates the relationship between the Aboriginal people of Canada, the Canadian government and the rest of the Canadian society. It has many components. Treaty negotiations and rights, natural resources harvesting rights, land and fisheries use, residential and school abuse, are all part of this multidimensional area of law. It also influences traditional areas of law, such as taxation, commercial development, oil and gas rights, labour law, criminal law and family law that need to be regarded in the context of Aboriginal law if they involve Canada’s Aboriginal people.

University of Ottawa’s Aboriginal Rights guide includes works on indigenous research methodologies generally, databases, government agencies, academic research centers, law school indigenous law units/programs, organizations, “Aboriginal Rights in Other Jurisdictions,” and resources on the “International Law of Indigenous Peoples’ Rights.” Daniel Perlin’s Aboriginal Law research guide at Osgoode Hall is strong for books and web links (such as to the Native Law Centre). Université de Québec à Montréal (UQÀM)’s “Droit des autochtones” LibGuide by Sylvie Girouard and Luc Marceau includes similar content, mostly in French. The University of Calgary guide has great links to “Aboriginal Law Websites” and the U of S iPortal (“Indigenous Studies Portal >> Law and Justice”). University of Alberta’s Aboriginal Law page links to key documents. Queen’s University’s Aboriginal Law guide contains general and introductory works and resources on treaties and agreements and how to locate them. University of Victoria has an Indigenous Law Research Unit and a LibGuide on Aboriginal Economic Development which also includes links to key works and websites. New, updated guides to researching the law of Indigenous peoples in Canada are coming soon.

The Government and Legislative Libraries Online Publications (GALLOP) Portal has full text PDF of Indigenous law titles. Canadiana has an “Aboriginals: Treaties and Relations“ section in its Canada in the Making page (preserved by the Internet Archive Wayback Machine). The Canadian Encyclopedia has an “Indigenous Peoples: Treaties” article. The Encyclopedia of Saskatchewan includes entries on “Aboriginal Justice” and “Aboriginal Treaty Rights.” INAC maintains the Aboriginal Treaty Rights Information System (ATRIS).

On November 3, 2016, Library and Archives Canada (LAC) announced on its blog the launch of a new digitization initiative, the RCAP Archive, to commemorate the 20^th anniversary of the 1996 final report of the Royal Commission on Aboriginal Peoples. Here’s an excerpt from the blog post:

Established in 1991, the Royal Commission on Aboriginal Peoples (RCAP) travelled across Canada documenting the issues and challenges facing Indigenous Canadians and their communities. Over its six-year mandate, RCAP amassed thousands of hours of recorded testimony and hundreds of thousands of pages of documents, culminating in the publication of the 1996 RCAP final report complete with a series of recommendations for a renewed relationship between Aboriginal and non-Aboriginal people in Canada…LAC launched a searchable database of select RCAP records at the commemorative national forum. The database contains transcripts of more than 175 days of hearings; nearly 200 research reports; more than 100 submissions from tribal councils, organizations and interest groups; as well as RCAP publications and the final report.

To locate other secondary background sources on the rights of Indigenous peoples in Canada, search library catalogs under the following subject headings:

Autochtones – Droit – Canada

Autochtones – Statut juridique – Canada

Indians of North America – Legal status, laws, etc. – Canada

Indiens – Amérique du Nord – Canada – Droit

Indiens – Statut juridique – Canada

Indiens d’Amérique – Canada – Droit

Indigenous peoples – Legal status, laws, etc. – Canada

Native peoples – Canada – Claims

Native peoples – Legal status, laws, etc. – Canada.

You can also do keyword searches for Indigenous law or “le droit des autochtones” or “le droit des peuples autochtones”.

Journal articles are also good to check. The University of Toronto student-run Indigenous Law Journal seems to be one of the best sources for current issues, with free, open access to its articles.

Databases & Websites

The Law Library of Congress’ Indigenous Law Portal has a Canada section. The Portal links to national Indigenous peoples gateways and organizations, the First Nations Gazette, and treaties and agreements with Indigenous peoples. Université Laval’s Droit autochtone guide links to the Autochtonia doctrine and the ATNS (Agreements, Treaties, and Negotiated Settlements Project) document databases. University of Saskatchewan’s Native Law Centre has a Case Watch blog for monthly summaries and commentaries on new decisions related to Indigenous peoples in Canada. The NLC also publishes the Canadian Native Law Reporter. And U of S users have access to the Canadian Native Law Cases database. The University Library maintains a digital archival collection, Our Legacy, which includes law-related material concerning First Nations, Métis, and Inuit peoples.

Twitter

To keep up-to-date with new general and legal developments involving Indigenous peoples in Canada, follow these Twitter accounts:

• @AFN_Updates (The Assembly of First Nations)
• @âpihtawikosisân (Chelsea Vowel, Indigenous activist)
• @APTNNews (Aboriginal Peoples Television Network)
• @CBCIndigenous
• @CSORG (Cultural Survival)(protection of Indigenous lands, languages, cultures)
• @FirstPeoplesLaw (Aboriginal Law Report)
• @GCIndigenous = @GCAutochtones (Government of Canada)
• @IdleNoMore4 (grassroots Indigenous peoples advocacy group)
• @IndigenousON = @AutochtonesON (Ministry of Indigenous Relations and Reconciliation, Ontario Government)
• @johnndavis (John N. Davis tweets news on Indigenous peoples in Canada)
• @MetisTreaties (Métis Treaties Project)
• @NationTalk (newswire)
• @NativeLawCentre (University of Saskatchewan)
• @NWAC_CA (Native Women’s Association of Canada)
• @NCTR_UM (National Centre for Truth and Reconciliation, University of Manitoba)
• @UBCIC (Union of British Columbia Indian Chiefs)
• @UN4Indigenous (UN Permanent Forum on Indigenous Issues)
• @UNSR_VickyTauli (UN Special Rapporteur on the Rights of Indigenous Peoples).