Canadian Aboriginal law

Indigenous or Aboriginal self-government refers to proposals to give governments representing the Indigenous peoples in Canada greater powers of government.^[15] These proposals range from giving Aboriginal governments powers similar to that of local governments in Canada to demands that Indigenous governments be recognized as sovereign, and capable of "nation-to-nation" negotiations as legal equals to the Crown (i.e. the Canadian state), as well as many other variations.^[16]

The Monarchy of Canada and the Indigenous peoples of Canada began interactions in North America during the European colonization period. The Royal Proclamation of 1763 recognized aboriginal title and the Treaty of Niagara of 1764 bound the Crown and the Indigenous peoples of the Great Lakes basin together in a familial relationship, a relationship that exists to this day, exemplified by First Nations attendance at the coronation of King Charles III.^[17] Post-Confederation Canada adopted a paternalistic approach and imposed an approach as though the nation-to-nation relationship did not exist, administering relations solely under Canadian law.^{[citation needed]}

After Canada's acquisition of Rupert's Land and the North-Western Territory in 1870, the eleven Numbered Treaties were imposed on the First Nations from 1871 to 1921. These treaties are agreements with the Crown administered by Canadian Aboriginal law and overseen by the Minister of Crown–Indigenous Relations.^[18]

Treaty rights would be recognized and incorporated into the 1982 Constitution. Many agreements signed before the Confederation of Canada are recognized in Canadian law, such as the Peace and Friendship Treaties, the Robinson Treaties, the Douglas Treaties, and many others, although many First Nations still have no treaty with the Crown recognizing their title, such as the Mikmaq, the Anishnaabe and several northern British Columbia nations.^{[citation needed]}

The Indian Act (French: Loi sur les Indiens) is a Canadian Act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves.^[19][20][a] First passed in 1876 and still in force with amendments, it is the primary document that defines how the Government of Canada interacts with the 614 First Nation bands in Canada and their members. Throughout its long history, the act has been a subject of controversy and has been interpreted in different ways by both Indigenous Canadians and non-Indigenous Canadians. The legislation has been amended many times, including "over five major changes" made in 2002.^[22]

The act is very wide-ranging in scope, covering governance, land use, healthcare, education, and more on Indian reserves. Notably, the original Indian Act defines two elements that affect all Indigenous Canadians:

The act was passed because the Crown relates differently to First Nations (historically called "Indians") than to other ethnic groups because of their previous history on the land. When Canada confederated in 1867 the new state inherited legal responsibilities from the colonial periods under France and Great Britain, most notably the Royal Proclamation of 1763 which made it illegal for British subjects to buy land directly from Indian nations, because only the Crown could add land to the British Empire from other sovereign nations through treaties. This led to early treaties between Britain and nations the British still recognized as sovereign, like the "Peace and Friendship Treaties" with the Mi'kmaq and the Upper Canada treaties. During the negotiations around Canadian Confederation, the framers of Canada's constitution wanted the new federal government to inherit Britain's former role in treaty-making and land acquisition, and specifically assigned responsibility for "Indians and lands reserved for Indians" to the federal government (rather than the provinces), by the terms of Section 91(24) of the Constitution Act, 1867. The Indian Act replaced any laws on the topic passed by a local legislature before a province joined Canadian Confederation, creating a definitive national policy.

The act is not a treaty; it is Canada's legal response to the treaties. The act's unilateral nature was imposed on Indigenous peoples after passage by the Canadian government, in contrast to the treaties, which were negotiated. This aspect was resented and resisted by many Indigenous peoples in Canada.

In Canada, aboriginal title is considered a sui generis interest in land. Aboriginal title has been described this way in order to distinguish it from other proprietary interests, but also due to the fact its characteristics cannot be explained by reference either to only the common law rules of real property, or to only the rules of property found in Indigenous legal systems.^{[23][24][25][26]} The Supreme Court of Canada has characterised the idea that aboriginal title is sui generis as the unifying principle underlying the various dimensions of that title.^[24][27] Aboriginal title is properly construed as neither a real right nor a personal right, despite the fact that it appears to share characteristics of both real and personal rights.^[28] Aboriginal title refers to the concept of a sui generis right in land that originates from the exclusive occupation and use of a specific territory by an aboriginal group over which the group has a native historic attachment.^[28][29]