Law, Aboriginal & Indigenous Guide Ask Us

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 this guide.

Legal Encyclopedias

Legal encyclopedias contain narrative summaries of the law supported by references to case law and statutes. They are often the best place to start to gain a general understanding of the law in a particular area.

There are two main legal encyclopedias in law: the Canadian Encyclopedic Digest (CED) and Halsbury's Laws of Canada (Halsbury's). CED covers federal, western, and Ontario jurisdictions, and Halsbury's covers all provincial and federal jurisdictions. Both are available in print in the Law Library in the reference section on the first floor.

Another legal encyclopedia is JurisClasseur Quebec, which covers Quebec law and is in French only.

Electronically, CED is available in Westlaw Edge, while Halsbury's and JurisClasseur are available in Lexis+/Lexis Advance Quicklaw.

Canadian Encyclopedic Digest

• Westlaw Edge (law students only)
• In print in the reference section
• Helpful titles include:
  • Aboriginal Law
  • Constitutional Law
•  How to start your research with the Canadian Encyclopedic Digest (5:58)

Halsbury's Laws of Canada

• Lexis+ (law students only)
• Lexis Advance Quicklaw (available to all students)
• In print in the reference section
• Helpful titles include:
  • Aboriginal Law
  • Constitutional Law (Charter of Rights)
•  Halsbury's Laws of Canada - Lexis Advance Quicklaw (1:45)

JurisClasseur Quebec

• Lexis+ (law students only)
• Lexis Advance Quicklaw (available to all students)
• Helpful titles include:
  • JCQ Droit public - Droit constitutionnel

Databases for Primary & Secondary Sources

The Law Library and UNB Libraries subscribe to several databases with legal and Indigenous content, including primary sources on Indigenous peoples (e.g., historical documents, narratives, diaries, laws, etc.) and secondary sources like legal articles, eBooks, and more.

If you already know the journal title, year, volume number, and page number for an article, search for the journal's title in the Journals & Newspapers database. If we have access to the journal electronically or in print, it will be listed with the format(s) and dates available with links to those available online. 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 database. An index is essentially a list of articles by topic. Sometimes the article will be available full-text, but often you'll just be given a citation that you can use to track it down somewhere else.

Full-text Databases

Subject-specific

• INFORMIT Indigenous Collection
  • Includes a broad range of resources on topics such as law and land rights, cultural studies, economics, education, health, history, literature, politics and policy making, and more. The focus is on Australia and New Zealand, but it has Canadian content as well.
• Indigenous Law Portal (via LLMC Digital)
  • Includes links to government documents, Assembly of First Nations reports, treaties and other agreements, policy documents, statutes, and more.
• Indigenous Peoples of North America (via Gale)
  • Includes resources from the 16th century to present on topics such as trade and communication, Arctic exploration and tribes/nations, Canadian Catholic Indian missions, establishment of the Canadian Indian and Aboriginal Department, Canadian Indian treaty policy, and more.
• iPortal: Indigenous Studies Portal Research Tool
  • Includes full-text resources such as articles, eBooks, theses, government publications, videos, oral histories, and digitized archival documents and photographs. The content is primarily focused on Indigenous peoples of Canada.
• North American Indian Thought and Culture
  • Contains materials from 1840–present, including biographies, autobiographies, personal narratives, speeches, diaries, letters, and oral histories.

General Legal Databases

• Index to Legal Periodicals & Books Full Text (1981– )
  • Note: this is a hybrid index/full-text database
• Index to Legal Periodicals Retrospective (1908–1981)
  • Note: this is a hybrid index/full-text database
• LegalTrac
  • Note: this is a hybrid index/full-text database
• Lexis+ (law students only)
  • Click Law Reviews & Journals
• Lexis Advance Quicklaw (available to all students)
  • Click Law Reviews & Journals
• Westlaw Edge (law students only)
  • Click Articles and Newsletters
• HeinOnline
  • Click Law Journal Library
• CanLII
  • Click Commentary

Indexes

Subject-specific

• Bibliography of Indigenous Peoples in North America (BIPNA)
  • Contains over 350,000 citations for newspapers, magazines, academic journals, books, reviews, and trade publications from the 16th century to the present covering topics such as archaeology, education, religion, economic development, acculturation, tribal governments, ethnohistory, and more.

General Legal Indexes

• Index to Canadian Legal Literature
  • Lexis+ (law students only)
  • Lexis Advance Quicklaw (available to all students)
  • Westlaw Edge (law students only)
• Index to Legal Periodicals & Books Full Text (1981– )
  • Note: this is a hybrid index/full-text database
• Index to Legal Periodicals Retrospective (1908–1981)
  • Note: this is a hybrid index/full-text database
• LegalTrac
  • Note: this is a hybrid index/full-text database

Books & eBooks

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.

Items shown as LAW-RESERVE may be requested at the circulation desk on the first floor of the Law Library. Bring the book's call number with you to the desk. Items shown as LAW-STACKS are on the second floor, and LAW-REF materials are on the first floor in the reference section.

The following books may be helpful:

Aboriginal Law:

• Aboriginal Law, 5th ed, by Thomas Isaac. LAW-STACKS KF8205 .A2 I82 2016.
• Aboriginal Legal Issues: Cases, Materials & Commentary, 5th ed, by John Borrows & Leonard Ian Rotman. LAW-STACKS: KF8204.5 .B67 2018
• Aboriginal & Treaty Rights Practice by Mary Locke Macaulay. LAW-RESERVE KF8203.4 .M32 2000 and eLooseleaf via ProView.
• Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada by the Royal Commission on Aboriginal Peoples. LAW-STACKS KF8210 .C7 C36 1996.
• Métis Law in Canada by Jean Teillet. LAW-RESERVE KF8228 .M47 T45 2013
• Métis in Canada: History, Identity, and Politics by Christopher Adams, Gregg Dahl & Ian Peach. LAW-STACKS FC109 .M48 2013 and eBook.
• Native Law by Jack Woodward. LAW-RESERVE: KF8205 .W662 1989 and eLooseleaf via ProView.
• The Unjust Society: The Tragedy of Canada's Indians by Harold Cardinal. LAW-STACKS E92 .C35.
• White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence by Sidney L. Harring. LAW-STACKS: KF8205 .H363 1998 and eBook.

Annotated Statutes

• The ... Annotated Indian Act and Aboriginal Constitutional Provisions (1999–2016 editions) by Shin Imai. LAW-STACKS KF8203 .C33.
• Annotated Aboriginal Law (2017–2022 editions) by Shin Imai. LAW-STACKS KF8203 .C33.
• Indigenous Peoples and the Law in Canada: Cases and Commentary (2023– editions) by Shin Imai et al. LAW-STACKS KF8203 .C33.

Indigenous Law

For books on Indigenous Law, see the Indigenous Law tab.

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)
  • A web-based information system intended to map out the location of Aboriginal communities and display information pertaining to their potential or established Aboriginal or treaty rights.
• Atlantic Policy Congress of First Nations Chiefs Secretariat (AFN)
  • Provides downloadable educational posters on Atlantic Peace and Friendship Treaties.
• Crown–Indigenous Relations and Northern Affairs Canada (CIRNAC)
  • Includes treaties from the mid-1700s to early 1900s.
• Indigenous Law Portal (via LLMC Digital)
  • Includes links to government documents, Assembly of First Nations reports, treaties and other agreements, policy documents, statutes, and more.
• Treaties, Surrenders, and Agreements database (Library and Archives Canada)
  • An extensive but incomplete collection of historic treaties, land surrenders, and related agreements between the Crown, First Nations, and, in one instance, the Métis.

Legislation & Case Law

Key Databases

The following databases and websites provide both legislation and case law:

• Lexis+ (law students only)
  • Non-law students: use Lexis Advance Quicklaw
• Westlaw Edge (law students only)
• CanLII  

Legislation

• 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
• Legislative Assembly of New Brunswick
• New Brunswick Acts and Regulations (NB Attorney General)
• Indigenous Law Portal (via LLMC Digital)
• Aboriginal and Treaty Rights Information System (ATRIS)
• 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

Specific 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 entry "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 listed above, you can find case law on the following websites:

• Supreme Court of Canada Cases
• Federal Court of Canada Cases
• Specific Claims Tribunal
  • An independent adjudicative body aimed at accelerating the resolution of specific claims in order to provide justice for First Nations claimants and certainty for government, industry, and all Canadians.
• New Brunswick Court Index (Justice and Public Safety)
• New Brunswick Courts

Case Digests

Along with the databases above, you should use a case digest to find case law. A case digest service indexes cases by topic, and each topic is broken down into several subtopics. With a case digest, you might find ten, twenty, or hundreds of cases on your research topic, saving you hours of time.

Two important case digests are the Canadian Abridgment Digests and the Canada Digest.

Canadian Abridgment Digests

• Available via Westlaw Edge (law students only) and in print in the reference section (available to all students)
• Useful titles include:
  • Aboriginal & Indigenous Law
  • Criminal Law
  • Environmental Law
  • Human Rights
•  How to start your research with the Canadian Abridgment Digests (5:39)
• How to search the Canadian Abridgment Digests (4:33)

Canada Digest

• Available via Lexis+ (law students only) and Lexis Advance Quicklaw (available to all students)
• Click Case Summaries > All Canada Digests for a list of topics
• Useful titles include:
  • Canada Aboriginal Law Digest
  • Canada Criminal Digest
  • Canada Environmental Law Digest
  • Canada Human Rights Law Digest
  • Canada Natural Resources Law Digest
  • Canada Constitutional Law Digest
• Canada Digest – Lexis Advance Quicklaw (2:09)

Case Reporters

If you would like to browse the print reporters, there are topical law reports dealing with Aboriginal law on the second floor (mezzanine level) of the Mackay Reading Room. Much of this content is retrospective. For current cases/decisions, please use electronic databases when available.

Specific case reporters include:

• Canadian Native Law Reporter (1977–)
  • Print: stack 257
  • Lexis+ (law students only)
  • Lexis Advance Quicklaw (available to all students)
• Canadian Native Law Cases (vols 1–9: 1763–1978)
  • Print: stack 257

Current Awareness Services

• LexisNexis Aboriginal Law NetLetter
  • Lexis+ (law students only)
  • Lexis Advance Quicklaw (available to all students)
  • A current awareness service covering recent judicial developments pertaining to First Nations, Inuit, and Métis peoples on topics such as treaty rights, land and resource claims, self-government of bands and nations, taxation issues, native justice, and criminal sentencing provisions specific to Aboriginal offenders.
  • Current Awareness – Lexis Advance Quicklaw (1:20)
• First Peoples Law Report (via First Peoples Law)
  • A weekly news update on Indigenous rights from First Peoples 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 by John Borrows. LAW-STACKS KF8205 .B673 2010 and eBook.
• Creating Indigenous Property: Power, Rights, and Relationships by Angela Cameron, Sari Graben & Val Napoleon. LAW-STACKS E98 .L3 .C74 2020.
• Freedom and Indigenous Constitutionalism by John Borrows. LAW-STACKS KF8205 .B6738 2016 and eBook.
• Indigenous Legal Traditions by the Law Commission of Canada. LAW-STACKS KF8220 .I53 2007 and eBook.
• Law's Indigenous Ethics by John Borrows. LAW-STACKS KF8228 .C6 B675 2019.
• Mikomosis and the Wetiko by 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 by C.F. Black. LAW-STACKS GR877 .B53 2017.
• Oral History on Trial: Recognizing Aboriginal Narratives in the Courts by Bruce Granville Miller. LAW-STACKS KF8205 .M54 2011.
• Otter's Journey Through Indigenous Language and Law by Lindsay Keegitah Borrows. LAW-STACKS KF8220 .B67 2018.
• Recovering Canada: the Resurgence of Indigenous Law by 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.

• The Mi'kmaq Anthology by Rita Joe & Lesley Choyce. LAW-STACKS PS8235 .I6 M55 1997.
• Nine Micmac Legends by Alden Nowlan. LAW-STACKS E99 .M6 N69 1983.
• Stories from the Six Worlds: Micmac Legends by Ruth Holmes Whitehead. HIL-STACKS E99 .M6 W48 1988 and eBook.

For other stories/narratives, search UNB WorldCat's holdings, and/or visit the following UNB Libraries subject guides:

• Indigenous Studies Guide
• First Nations' Materials in Archives & Special Collections Guide

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 by Oonagh E. Fitzgerald, Valerie Hughes & Mark Jewett, eds. LAW-STACKS KF4483 .I67 R44 2018.
• 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:

• 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.
  • 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 Queen's University Library 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 at the University of Alberta Faculty of Native Studies/Faculty of Law
  • Provides links to publications on Indigenous law.

National Inquiries / Truth and Reconciliation

• Royal Commission Report on Aboriginal Peoples (1996)
• Truth & Reconciliation Commission (2015)
  • National Centre for Truth and Reconciliation
  • Truth and Reconciliation Commission (TRC) of Canada  (archived)
• National Inquiry into Missing and Murdered Indigenous Women and Girls (2019)

Websites & Blogs

The following websites may be helpful for your research:

• 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 (via University of Saskatchewan)
• Madawaska Maliseet First Nation Lands Law
• Mi'kmaq-Wolastoqey Centre (via UNB)
• Centre for First Nations Governance
• Wabanaki Collection
• Wahkohtowin Law & Governance Lodge: Research and Public Resource Areas (via University of Alberta)

Governmental

• Indigenous Affairs (Government of New Brunswick)
• Aboriginal and Treaty Rights Information System (ATRIS)
• Crown–Indigenous Relations and Northern Affairs Canada (CIRNAC)
  • Fact Sheet - Taxation by Aboriginal Governments
  • First Nation Profiles
• Indigenous Services Canada
• Standing Committee on Indigenous Peoples (Senate of Canada) (covers 35th Parl, 1st Sess (1994) to present)

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 Library)
• Indigenous Law/Indigenous Legal Traditions Guide (via University of Victoria Libraries)
• First Peoples Law: Public Education

Other Provinces

• 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)
• Indigenous Law Centre (University of Saskatchewan)
• Office of the Treaty Commissioner (Province of Saskatchewan)

International

• United Nations Declaration on the Rights of Indigenous Peoples

Blogs and News

There are many blogs maintained by lawyers and law firms, and you can find many of them at lawblogs.ca. There are blogs in the Indigenous category that might be helpful for your research.