Aboriginal Law vs. Indigenous Law
Aboriginal Law vs. Indigenous Law
"Aboriginal law, created by Canadian courts and legislatures, is about the legal relationship between Indigenous Peoples and the Crown within the Canadian legal system.
"Aboriginal law involves the interpretation of Indigenous rights recognized in the Canadian Constitution and other laws created by Canadian governments such as the Indian Act or self-government agreements. Most notably, this body of law includes defining the nature and scope of Aboriginal and Treaty rights under section 35 of the Constitution Act, 1982 and the Crown’s corresponding obligations to Indigenous Peoples.
"Indigenous law refers to Indigenous Peoples’ own legal systems. This includes the laws and legal processes developed by Indigenous Peoples to govern their relationships, manage their lands and waters, and resolve conflicts within and across legal systems. As with Canadian law, Indigenous law is developed from a variety of sources and institutions which differ across legal traditions."
—Kate Gunn & Cody O'Neil, "Indigenous Law & Canadian Courts" (20 January 2021), online (blog): First People's Law <firstpeopleslaw.com/public-education/blog/indigenous-law-canadian-courts>.
Special thanks to Karen McGill, UNB Law Class of 2019 and Lands Director at the Madawaska Maliseet First Nation, for her assistance with the Indigenous Law portion of this guide.
Legal Encyclopedias
Legal Encyclopedias
There are two main legal encyclopedias in law: the Canadian Encyclopedic Digest (CED) and Halsbury's Laws of Canada (Halsbury's). Both are available in print in the Law Library in the reference section on the first floor.
Electronically, CED is available in Westlaw Edge, while Halsbury's is available in Lexis+. Please note that only law students and faculty have access to Westlaw Edge and Lexis Advance Quicklaw (except for the campus-wide version of Quicklaw available to non-law UNB and STU students and faculty). Make sure to check the currency of these titles, as some can be years out of date.
Canadian Encyclopedic Digest
In print and electronically in Westlaw Edge (law students only), the CED has an Aboriginal Law title available (vol. 1 in print series).
Note that CED focuses on federal, Ontario, and western jurisdictions.
Halsbury's Laws of Canada
Both in print and electronically in Lexis+ (non-law UNB and STU students and faculty use the campus-wide version), Halsbury's has an Aboriginal Law title. The title code for the volume is HAB.
Note that Halsbury's provides information on each province in Canada, as well as federally.
Journal Article Databases
Journal Article Databases
If you already know the journal title, year, volume number and page number for an article, you may be able to access it electronically by searching for the journal's title in the UNB e-journals database. If we have the journal electronically or in print, it will be listed. You can also look up the journal title in UNB WorldCat.
Keep in mind that it can be best to start with an index rather than a full-text journal search. A few key indexes in law are listed below.
Key Resources
- Index to Canadian Legal Literature
- Available via Lexis+ (non-law UNB/STU use the campus-wide version of Quicklaw)
- Available via Westlaw Edge (law students only)
- Index to Legal Periodicals & Books Full Text
- Index to Legal Periodicals Retrospective
- LegalTrac
- Lexis+ (non-law students use the campus-wide version of Quicklaw)
- Click Law Reviews & Journals
- Westlaw Edge (law students only)
- Click Articles and Newsletters
- HeinOnline
- Click Law Journal Library
- INFORMIT Indigenous Collection
- Indigenous Law Portal (via LLMC Digital)
- Indigenous Peoples of North America (via Gale)
There are other indexes available in print and electronically, as well as more full-text journal databases. See a librarian for assistance.
For more resources, please visit the Law Library website.
Books
Books
To search for books at UNB Libraries, use UNB WorldCat, the library's catalogue. UNB WorldCat contains records of materials held at the Harriet Irving, Science and Forestry, Engineering, and Law libraries, as well as the Hans W. Klohn Library at UNB-Saint John.
In UNB WorldCat, items shown as LAW-RESERVE may be requested at the Law Library's circulation desk on the first floor. Items shown as LAW-STACKS are on the Law Library's second floor, arranged by call number.
Aboriginal Law:
- Aboriginal Law, 5th ed / Thomas Isaac. LAW-STACKS KF8205 .A2 I82 2016.
- Aboriginal Legal Issues: Cases, Materials & Commentary, 4th ed / John Borrows and Leonard Ian Rotman. LAW-STACKS: KF8204.5 .B67 2012
- Aboriginal & Treaty Rights Practice / Mary Locke Macaulay. LAW-RESERVE: KF8203.4 .M32 2000.
- The ... Annotated Indian Act and Aboriginal Constitutional Provisions. The most recent year is available. LAW-STACKS: KF8203 .C33.
- Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada / Royal Commission on Aboriginal People. LAW-STACKS KF8210 .C7 C36 1996.
- Métis Law in Canada / Jean Teillet. LAW-RESERVE: KF8228 .M47 T45 2013
- Metis in Canada: History, Identity, and Politics Christopher Adams, Gregg Dahl & Ian Peach. LAW-STACKS FC109 .M48 2013. Also available as an eBook.
- Native Law / Jack Woodward. LAW-RESERVE: KF8205 .W662 1989.
- The Unjust Society: The Tragedy of Canada's Indians / Harold Cardinal. LAW-STACKS E92 .C35.
- White Man's Law: Native People in Nineteenth-century Canadian Jurisprudence / Sidney J Harring. LAW-STACKS: KF8205 .H363 1998. Also available as an eBook.
For books on Indigenous Law, see the Indigenous Law tab.
Treaties, Legislation & Case Law
Treaties, Legislation & Case Law
Treaties
To find nation-to-nation treaties available in UNB's holdings, search UNB WorldCat. Many treaties are available electronically or in print in the law library.
You can also find treaties on the following sites/databases:
- Aboriginal and Treaty Rights Information System (ATRIS)
- Atlantic Policy Congress of First Nations Chiefs Secretariat (AFN) (has downloadable educational posters on Atlantic Peace and Friendship Treaties)
- Crown–Indigenous Relations and Northern Affairs Canada (CIRNAC) (includes treaties from the mid-1700s to the early 1900s)
- Indigenous Law Portal (via LLMC Digital)
- Library and Archives Canada's Treaties, Surrenders and Agreements database
Key Resources for Statutes and Case Law
The following databases and websites provide access to federal and provincial cases and legislation.
- Lexis+ (law students only)
- Non-law students: use the campus-wide version of Quicklaw
- Westlaw Edge (law students only)
- CanLII
- Supreme Court of Canada Cases
- Federal Court of Canada Cases
- Specific Claims Tribunal Canada
- LEGISinfo (Parliament of Canada)
- Includes information on federal bills, including status, speeches, links to Hansard debates, full-text versions of bills, and more from 35th Parl, 1st Sess (January 1994) to the current session
- GALLOP Portal
- Searches electronic government documents from Legislative libraries in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland & Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, and Québec
- Legislative Assembly of New Brunswick
- New Brunswick Acts and Regulations (NB Attorney General)
- Includes current legislation, rules of court, the Royal Gazette, the status of bills, and more
- New Brunswick Court Index (Justice and Public Safety)
- New Brunswick Courts
- Indigenous Law Portal (via LLMC Digital)
- Aboriginal and Treaty Rights Information System (ATRIS)
Statutes
The following federal statutes and regulations are related to Aboriginal law in Canada. It is not a complete list. Use a secondary source (like a legal encyclopedia) or search a database for more statutes.
There are several statutes meant to replace sections in the Indian Act (RSC 1985, c I-5). For more information, visit Crown–Indigenous Relations and Northern Affairs Canada's page "Attempts to Reform or Repeal the Indian Act." Many of these statues also attempt to fill in gaps in the Indian Act; for more, see The Canadian Encyclopedia's "Women and the Indian Act."
Some of the acts that replace sections of the Indian Act or fill in gaps include:
- Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20
- First Nations Land Management Act, SC 1999, c 24
- First Nations Fiscal and Statistical Management Act, SC 2005, c 9
- First Nations Oil and Gas and Moneys Management Act, SC 2005, c 48
- First Nations Commercial and Industrial Development Act, SC 2005, c 53
- Gender Equity in Indian Registration Act, SC 2010, c 18
Other statutes that might be of interest:
- Sections 35 and 91 of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
- Addition of Lands to Reserves and Reserve Creation Act, SC 2018, c 27, s 675
- An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24
- Aboriginal Peoples of Canada Adaptations Regulations (Firearms), SOR/98-205
- Department of Crown-Indigenous Relations and Northern Affairs Act, SC 2019, c 29, s 337
- Department of Indigenous Services Act, SC 2019, c 29, s 336
- First Nations Goods and Services Tax Act, SC 2003, c 15, s 67
- Indigenous Languages Act, SC 2019, c 23
- Safe Drinking Water for First Nations Act, SC 2013, c 21
- Specific Claims Resolution Act, SC 2003, c 23
- United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14
Cases and Decisions
Along with searching the databases mentioned above, one can use other products to find case law:
- Canadian Abridgment Digests
A digest service that indexes cases by subject. This is an extremely useful resource. There is an Aboriginal Law volume available in print (vol 1) and an Aboriginal & Indigenous Law topic available electronically in Westlaw Edge (law students only). - Canada Digest
A digest service similar to the Canadian Abridgment. Useful titles include Canada Aboriginal Law Digest. It is available electronically through Lexis+ (non-law UNB/STU use the campus-wide version of Quicklaw). - Case Reporters
If you wish to browse the print reporters, we have some topical law reports dealing with Aboriginal law on the second floor. Much of this content is retrospective. For current cases/decisions, please use electronic databases when available.- Canadian Native Law Reporter (1977–), stack 257 (current holdings in Lexis+ [non-law UNB/STU use the campus-wide version])
- Canadian Native Law Cases (vols 1-9: 1763-1978), stack 257
- First Peoples Law Report (First Peoples Law)
A weekly news update on Indigenous rights from First Peoples Law.
Indigenous Law
Indigenous Law
Books:
The following texts might be helpful when researching Indigenous Law. As always, search UNB WorldCat for more titles.
- Canada's Indigenous Constitution / John Borrows. LAW-STACKS KF8205 .B673 2010 and eBook.
- Creating Indigenous Property: Power, Rights, and Relationships / Angela Cameron, Sari Graben & Val Napoleon. LAW-STACKS E98 .L3 .C74 2020.
- Freedom and Indigenous Constitutionalism / John Borrows. LAW-STACKS KF8205 .B6738 2016 and eBook.
- Indigenous Legal Traditions / Law Commission of Canada. LAW-STACKS KF8220 .I53 2007 and eBook.
- Law's Indigenous Ethics / John Borrows. LAW-STACKS KF8228 .C6 B675 2019.
- Mikomosis and the Wetiko / Val Napoleon. LAW-STACKS KF8228 .C88 M55 2013.
- Note: this is a ILRU-designed graphic novel that explores Cree and Canadian legal approaches to danger, harm, and wrongdoing through the lens of a fictionalized historical event.
- A Mosaic of Indigenous Legal Thought: Legendary Tales and Other Writings / CF Black. LAW-STACKS GR877 .B53 2017.
- Oral History on Trial: Recognizing Aboriginal Narratives in the Courts / Bruce Granville Miller. LAW-STACKS KF8205 .M54 2011.
- Otter’s Journey Through Indigenous Language and Law / Lindsay Keegitah Borrows. LAW-STACKS KF8220 .B67 2018.
- Recovering Canada: the Resurgence of Indigenous Law / John Borrows. LAW-STACKS KF8205 .B67 2002.
Stories/Narratives:
The following resources are stories/narratives that ILRU reviewed/used to draw legal principles from. Only those from First Nations located in what is currently New Brunswick are listed. Note that these books are located at the Harriet Irving Library.
- The Mi'Kmaq Anthology / Rita Joe & Lesley Choyce. HIL-STACKS PS8235 .I6 M55 1997.
- Nine Micmac Legends / Alden Nowlan. HIL-STACKS E99 .M6 N69 2007.
- Stories from the Six Worlds: Micmac Legends / Ruth Holmes Whitehead. HIL-STACKS E99 .M6 W48 1988.
For other stories/narratives, search UNB WorldCat's holdings, and/or visit the following UNB Libraries subject guides:
Book Chapters/Articles:
- McGill Law Journal ((2016) vol. 61, no. 4) (also available on CanLII) focused on Indigenous Law. Articles include:
- "An Inside Job: Engaging with Indigenous Legal Traditions through Stories" by Val Napoleon & Hadley Friedland
- "Heroes, Tricksters, Monsters, and Caretakers: Indigenous Law and Legal Education" by John Borrows
- "The Tricksters Speak: Klooscap and Wesakechak, Indigenous Law, and the New Brunswick Land Use Negotiation" by Lara Ulrich & David Gill
- "Indigenous Legal Traditions and Transnational Law in the Pre-confederation Maritime Provinces" by Robert Hamilton, in Reflections on Canada's Past, Present and Future in International Law / Oonagh E Fitzgerald, Valerie Hughes & Mark Jewett. LAW-STACKS KF4483 .I67 R44 2018 and eBook.
- "What Is Indigenous Law? A Small Discussion" by Val Napoleon (via ILRU)
- Windsor Yearbook of Access to Justice ((2016) vol. 33, no. 1) (also available on CanLII) focused on Indigenous Law. Articles include:
- "Outsider Education: Indigenous Law and Land-based Learning" by John Borrows
- "Learning from Bear-walker: Indigenous Legal Orders and Intercultural Legal Education in Canadian Law Schools" by Hannah Askew
- "Waniskā: Reimagining the Future With Indigenous Legal Traditions" by Hadley Friedland
Websites:
- Accessing Justice and Reconciliation Project
- Project launched by the Indigenous Law Research Unit, the Indigenous Bar Association, and The Truth and Reconciliation Commission of Canada to better recognize how Indigenous societies used their own legal traditions to successfully deal with harms and conflicts between and within groups and to identify and articulate legal principles that could be accessed and applied today to work toward healthy and strong futures for communities. Includes links to seven partner communities and their representative legal traditions and project documents such as summaries of Cree and Anishnabek legal principles.
- Legal Orders and Oral Traditions and Traditional Stories by Nation
- From the UVic Libraries' Indigenous Law/Indigenous Legal Traditions Guide
- Lists books and other resources on Indigenous legal traditions and oral traditions and traditional stories of selected Indigenous Nations across Canada: Anishinaabe, Coast Salish, Cree/Nehiyaw, Gitxsan, Tsilhqot'in, Inuit, Métis, and Sepwépemc Nations.
- Note: books listed link to the UVic Libraries catalogue. Search the titles in the UNB Libraries catalogue. If we don't have a book at UNB, request it via the Law Library's interlibrary loan service.
- Indigenous Law Video on Demand
- Videos created for the Indigenous Law Research Unit that provide critically oriented introductions to important topics in the area of Indigenous Law. Includes a discussion guide [PDF].
- The three main videos are:
- Indigenous law: an introduction
- Indigenous law, gender, and sexuality
- Indigenous law: tough questions
- Indigenous Oral Traditions and Traditional Stories by Nation
- From the UVic Libraries' Indigenous Law/Indigenous Legal Traditions Guide
- Lists books and other resources with stories/narratives that the Indigenous Law Research Unit have been reviewed/used to draw legal principles from.
- Note: books listed link to the UVic Libraries catalogue. Search the titles in the UNB Libraries catalogue. If we don't have a book at UNB, request it via the Law Library's interlibrary loan service.
- Sources of Indigenous Laws and Legal Traditions
- From the Queen's University Library's Aboriginal Law & Indigenous Laws Guide
- Lists books and other resources on Indigenous Laws and Legal Traditions generally and with a focus on Anishinaabe; Cree; Haudenosaunee; Inuit; Métis; Musqueam, Squamish, and Tsleil-Waututh; Sepwépemc; Wendat; and Witsuwit'en Nations.
- Note: books listed link to the UVic Libraries catalogue. Search the titles in the UNB Libraries catalogue. If we don't have a book at UNB, request it via the Law Library's interlibrary loan service.
- Research and Public Resources: Indigenous Law
- From the Wahkohtowin Law and Governance Lodge, University of Alberta Faculty of Native Studies/Faculty of Law
- Provides links to publications on Indigenous law.
National Inquries/TRC
National Inquiries / Truth and Reconciliation
- Royal Commission Report on Aboriginal Peoples (1996) (Indigenous and Northern Affairs Canada)
- National Centre for Truth and Reconciliation (University of Manitoba) (has TRC reports and modern and historical reports)
- Truth and Reconciliation Commission (TRC) of Canada
- National Inquiry into Missing and Murdered Indigenous Women and Girls
Websites & Blogs
Websites & Blogs
Websites
The following websites may be helpful for your research:
- Accessing Justice and Reconciliation Project
- Assembly of First Nations
- Atlantic Policy Congress of First Nations Chiefs Secretariat
- CBA Aboriginal Law Section
- First Nations Land Management Resource Centre
- First Nations Tax Commission
- Indigenous Bar Association
- Indigenous Law Centre (formerly Native Law Centre; via University of Saskatchewan)
- Indigenous Law Research Unit (ILRU)
- iPortal: Indigenous Studies Portal Research Tool (University of Saskatchewan)
- Madawaska Maliseet First Nation Lands Law
- Mi'kmaq-Wolastoqey Centre (UNB)
- National Centre for First Nations Governance
- Wabanaki Collection
- Wahkohtowin Law & Governance Lodge: Research and Public Resource Areas (University of Alberta)
Governmental
- Aboriginal Affairs (New Brunswick)
- Aboriginal and Treaty Rights Information System (ATRIS)
- First Nations Collection (Library and Archives Canada)
- Crown–Indigenous Relations and Northern Affairs Canada (CIRNAC)
- Indigenous Services Canada
- Indian Affairs Annual Reports, 1864–1990 (via Library and Archives Canada)
- Standing Committee on Aboriginal Peoples (Senate of Canada) (records back to 35th Parl, 1st Sess (1994–1996))
Research Guides
- Indigenous Studies Guide (UNB Libraries)
- First Nations' Materials in Archives & Special Collections Guide (UNB Libraries)
- Aboriginal Law & Indigenous Laws Guide (via Queen's University)
- Indigenous Law/Indigenous Legal Traditions Guide (via University of Victoria)
- First Peoples Law: Public Education
Other Provinces
- Aboriginal Justice (Government of Alberta)
- Contacts for First Nation Consultation Areas Public Map Service (Government of British Columbia)
- First Nations Negotiations (Ministry of Aboriginal Relations & Reconciliation, British Columbia)
- Ministry of Aboriginal Relations & Reconciliation (Province of British Columbia)
- Native Law Centre (University of Saskatchewan)
- Office of the Treaty Commissioner (Province of Saskatchewan)
International
Blogs and News
There are many blogs maintained by lawyers and law firms, and you can find many of them at lawblogs.ca. The following are a few blogs that might be helpful for Aboriginal and/or Indigenous Law research:
- First Peoples Law
- Indigenous Law Blog
- Indigenous Law Centre CaseWatch Blog
- Native Law Centre Blog
- OKT Aboriginal Rights Lawyers Blog
- Reconciliation Syllabus: a TRC-inspired Gathering of Materials for Teaching Law
More Information More Information
- Nikki Tanner
- Reference/Instruction Librarian
- UNB Fredericton
- ntanner@unb.ca