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Indigenous Legal Research

Legislation

PRINCIPAL LEGISLATION - THE INDIAN ACT

The Federal Parliament exercised its jurisdiction under s 91(24) of the Constitution Act 1867  by passing the Indian Act 1876 (SC 1876 c 18). This Act has been amended many times but is still the main statute that codifies Federal legislative powers over a defined group of aboriginal people called Indians (meaning persons entitled to be registered as Indians under the Act (s 2).  The Act does not apply to Inuit (s 4)). The current Indian Act (RSC 1985 c I-5) is available on the official Government legislation website. It is divided into several sections relating to the registration system for Indians, governance by bands, reserve lands, moneys and other legal rights.

FINDING LEGISLATION

Indigenous and Northern Affairs Canada (now the Indigenous Services Canada) is responsible for administering legislation that impacts on Aboriginal Canadians. An alphabetical list of all these Acts, with links to full text official versions of the Acts, is available on the website (open access).

The Acts affecting Aboriginal Canadians are also available in the Canadian Aboriginal Law chapters in Halsbury's Laws of Canada on Lexis Advance Pacific (UniMelb staff & student access). A list of all Acts is provided in the TABLE OF STATUTES. In addition, under each topic, Halsbury's provides commentary, with links to legislation and leading cases.

For detailed information on researching legislation, see the Federal Legislation pages on our Canadian Legal Research Guide.

Constitutional Law & Constitutionally Entrenched Rights

The Royal Proclamation of 1763 is a foundational document in the relationship between First Nations people and the Crown, and laid the foundation for a constitutional recognition and protection of First Nations rights in Canada. The Proclamation defined the land that were to be 'Indian Territories', where First Nations people 'should not be molested or disturbed' by settlers. It also prohibited colonial governors from making any grants or taking any land cessions from First Nations people, and established a set of protocols and procedures for the purchasing of First Nations land. The rights and freedoms contained in the Proclamation is enshrined in s 25 the Canadian Constitution Act 1982More on the Proclamation, including the full text, on the Indigenous and northern Affairs Canada website.

Pursuant to s 91(24) of the Constitution Act 1867, the Federal government has exclusive power to legislate over 'Indians, and Lands reserved for the Indians'. Provincial laws enacted under the authority of s 92 can apply to Indians and lands reserved for the Indians but only under specific circumstances. 

Section 35 of the Canadian Charter of Rights and Freedoms (included as a Schedule to the Constitution Act 1982) recognises and affirms 'the existing aboriginal and treaty rights of the aboriginal peoples of Canada'. Aboriginal rights arise from the interests of aboriginal people originating in their historical occupation and use of the land. Aboriginal title is an aboriginal right to traditional lands; it is a collective right to land, not an individual right.Treaty rights derive primarily from the wording of a treaty. 

For commentary and analysis of the inclusion of aboriginal people in the Constitution, see Chapter 2: 'Constitutional Law', under the Historical and Legal Background heading in the Canadian Aboriginal Law title in Halsbury's Laws of Canada on Lexis Advance Pacific (UniMelb staff & student access).