Indigenous law and Aboriginal law: It’s past time we all knew the difference

An interview with Pivot Board Chair, Stephen Mussell


Before we were confronted with the COVID-19 global pandemic, the struggle between the Wet’suwet’en Hereditary Chiefs and the Royal Canadian Mounted Police (RCMP) in the Coastal GasLink dispute was dominating headlines across the country. The dispute isn’t simply a conflict about a pipeline; it is about whose jurisdiction, whose consent, and whose laws matter in decision-making regarding the lands on which the pipeline route would traverse. In this blog post, we seek to understand how this conflict fits into the broader issue of Canada ignoring Indigenous laws and discounting Aboriginal legal precedent to justify its own jurisdiction.


Keep up with what’s happening at Wet’suwet’en


Pre-COVID-19, solidarity actions supporting the Wet’suwet’en were in full force around the world, condemning Canada’s lack of respect for free, prior, and informed consent (FPIC)— enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)— and the use of police force, including military style raids, against Wet’suwet’en land defenders. Inevitably, the prominence of this movement sparked many Canadians to attempt hiding behind the old “rule of law” line to justify the RCMP’s invasion of Wet’suwet’en territories; they claimed that the injunction to remove Wet’suwet’en land defenders, granted by a provincial court, was the only law that the RCMP were expected to adhere to. Canadian politicians, decision makers, and the general Canadian population’s ignorance around Aboriginal law and Indigenous law caused confusion about who has jurisdiction over Wet’suwet’en land and whose laws were considered “the rule.” It’s ironic, however, considering that a quick look into the “rule of law” shows that multiple legal systems are on the side of the Wet’suwet’en, including Canadian law.


View a list of media coverage on this issue


So, what is the difference between Aboriginal and Indigenous law and how do they apply (or not) to the Wet’suwet’en dispute?

For starters, they are completely different legal systems. In short, Indigenous laws are Indigenous peoples' own legal systems, which existed long before Canadian colonial state law on these lands, and they continue to exist today as living, breathing, changing systems of law despite hundreds of years of Canada's attempts to abolish them. By contrast, Aboriginal law is the body of Canadian laws that dictate Indigenous peoples' rights under the colonial legal framework. In the context of the Wet’suwet’en conflict, both Wet’suwet’en laws and Canada’s own Aboriginal laws— not to mention international human rights laws— were on the side of Wet’suwet’en Hereditary Chiefs. Yet, somehow, the “rule of law” was still weaponised against the Wet’suwet’en. It seems blatantly obvious that this is a continuation of the racist doctrines that enabled the colonial state to establish itself in the first place and that view Indigenous peoples and their governance systems and laws as inferior.

Photo Credit: Amanda Follett Hosgood | Source: The Tyee, with permissions | RCMP officers arresting Wet’suwet’en Hereditary Chief, Freda Huson (Howilhkat), at the Unist’ot’en Healing Centre during a police raid | February 2020

As a legal organization that works within the Canadian law to advance the human rights of people systemically pushed to the margins of society, Pivot wanted to further investigate how the Canadian law has justified its claim to exclusive legal authority on Indigenous lands. Spoiler alert: it’s an unstable claim.

The Chair of our Board of Directors, Stephen Mussell (he/him), sat down with Pivot Communications Associate, Kaymi Yoon-Maxwell (they/them and she/her), to answer some questions about Indigenous law and Aboriginal law. He shares what he wishes Canadian lawyers knew about these different legal systems, how he thinks social justice legal organizations— like Pivot— can honour Indigenous laws while still advocating to advance Indigenous peoples’ rights through colonial legal avenues, and what gives him hope in the wake of the ongoing legalized violence administered by the Canadian state against Indigenous peoples.


Stephen is Plains Cree-Métis, he is a citizen of the Manitoba Métis Federation and the Métis Nation British Columbia. His family hails from the Eagle Hills and the historic Métis community located in the Red River Valley, Manitoba. Stephen holds a Juris Doctor from the UBC Faculty of Law, with a specialization in Aboriginal law. Stephen is an associate at Mandell Pinder LLP where his practice includes research, economic development, governance, negotiation, consultation, advocacy, and strategic advice relating to Aboriginal rights. Stephen has a particular practice interest in Indigenous laws and having them taken seriously as law, equal in weight and force to those of the Crown.


Read more about Stephen


Interview

Q: How do you define Indigenous Law?

A: How I'd define Indigenous law, simply, are the laws that we as Indigenous people adhere to and govern ourselves and our territories by. Those are the laws that are rooted in our authority as Indigenous peoples, who have been on our lands for thousands of years. That doesn't necessarily mean that these laws are rooted in the past; some might be, some might not be. Essentially, it's our laws under our authority as self-determining, self-governing, sovereign peoples.


Learn more about Indigenous law:
ILRU: Indigenous Law / Indigenous Legal Traditions Guide
JFK Law Corp: Making Space for Indigenous Law
WCEL: Indigenous Law Resources


Q: How do you define Aboriginal Law?

A: Aboriginal law is the area of law that has developed within the Canadian common law to deal with the fact that Indigenous peoples were here when non-Indigenous people showed up. It tries to fit us into their legal scheme, which doesn't really work. Beyond that, I think it has developed into a broader area of law. It can mean all of the different ways that Canadian laws touch on the lives of Indigenous peoples— and there's a lot of specific law that has developed as it relates to us. For example, all the laws contained in the Indian Act. And then there’s the laws that have been developed by the courts, some big Supreme Court cases that have shaped these laws are: Calder (1973), Guerin (1984), Sparrow (1990), Van der Peet (1996), Delgamuukw (1997), Manitoba Métis Federation (2013), Tsilhqot'in (2014), and Daniels (2016).


Learn more about Aboriginal law:
Indigenous Foundations: Aboriginal Rights
DGW Law Corp: Aboriginal Law Explainer
First Peoples Law: Publications


Q: What do you wish all lawyers trained in Canadian state law knew about these different forms of law?

A: I think that the importance of knowing the difference between the two leads into everything else. I would like lawyers to understand that Aboriginal law is something completely separate and different from Indigenous law. Aboriginal law has been developed by the colonial state. Indigenous laws are pre-existing and existing laws which carry their own weight and authority, and which deserve to be treated in a similar vein that lawyers treat colonial law: as something that has its own inherent power, something that has its own legitimacy, and something that is diverse and dynamic, and comes from multiple sources— it's not any one thing. And I think if we just simply understood that they are two very distinct, different things and they both carry their own authorities and their own ways, I think that would be a very good first starting point.

As soon as you start folding Indigenous law into Aboriginal law, you're treating it as something less. You're not letting it stand on its own.

Even many people who work within the field of Aboriginal law don't fully comprehend or understand what the difference between the two is. Sometimes you see law firms, whether they're well-meaning or not, renaming their Aboriginal law practices as Indigenous law practices. This completely mixes the two up— it causes confusion and then you don't know what they're actually talking about. As soon as you start folding Indigenous law into Aboriginal law, you're treating it as something less. You're not letting it stand on its own.

All Canadians need to understand the difference between Indigenous law and Aboriginal law
Final Report of the Truth and Reconciliation Commission of Canada

Just as the Truth and Reconciliation Commission set out in their final report: “All Canadians need to understand the difference between Indigenous law and Aboriginal law” (pg 45, Vol 6). They’re calling on all Canadians. Especially as lawyers trained in Canadian law, we clearly have an obligation to understand the difference between the two— whether or not you agree with my take on the strength and power of Indigenous law. I think you need to at least understand the difference between the two and treat them as separate— that's pretty much the minimum.

Q: How have the Canadian courts justified their jurisdiction? What legal arguments have they used to explain their powers?

A: What the courts in Canada have done to justify their own jurisdiction, Crown sovereignty, is they have taken these outdated racist concepts which are foundational: the doctrine of terra nullius and the doctrine of discovery. They have relied on those doctrines without naming the fact that they're relying on those doctrines. So, way back when the original cases were first coming out— one is Johnson v. M’Intosh (1823) from the United States and then there’s St. Catherine’s (1888)— they explicitly relied on those two doctrines when a European power came across “empty” lands to declare that those lands became their own. Obviously, these lands weren't actually empty; Indigenous people were here, already existing in complex societies under our own systems of governance, pursuant to our laws. Therefore, it’s clear that these doctrines wouldn't apply unless you were treating Indigenous peoples as inferior.

We don't know what the justification is at this point because it doesn't exist. It didn't make sense then, and was racist. And now it still doesn't make sense, and is racist.

We can see this consistent thread throughout Canada’s legal system, leading back to these original doctrines. The first case to find Aboriginal title in Canada was Tsilhqot'in Nation v British Columbia (2014). The Supreme Court of Canada tried explaining it away and effectively, former Chief Justice Beverley McLachlin, said that the doctrine of terra nullius never applied in Canada, citing the Royal Proclamation of 1763 (at para 69 of the decision). However, the ruling then proceeded to say that upon the assertion of sovereignty, the Crown gained underlying title to all the lands in Canada. To my mind, that sounds like the doctrine of terra nullius and the doctrine of discovery, repackaged. And there's no explanation given beyond that. So, we're left wanting an explanation: well, if this isn't the doctrine of terra nullius and the doctrine of discovery, which it seems suspiciously like, then what is it? Is it some other racist doctrine that we're unaware of? Is it just, you know, the Supreme Court of Canada explicitly concluding that Indigenous people and our laws and our systems of governance are inferior? As Anishinabe/Ojibway legal scholar, John Borrows, says, “British words uttered half a world away diminished Tsilhqot’in jurisdiction,” due to these engrained doctrines. So really, we don't know what the justification is at this point because it doesn't exist. It didn't make sense then, and was racist. And now it still doesn't make sense, and is racist.

Photo Credit: Kaymi Yoon-Maxwell | Stephen Mussell giving a talk, “Legal Land Theft: Aboriginal Law in BC, the Power of Indigenous Law,” as part of the Carnegie Community Action Project’s legal education workshop series, which inspired this blog post | March 2020

Q: As an organization dedicated to advocating for the rights of people experiencing poverty and social exclusion, how do you see these different types of laws connected to the work you do with Pivot?

A: I look at this in a few different ways. I think Pivot is a unique organization in that we advocate for people’s rights through existing avenues of Canadian law— we go to court and we hold the Crown, or whoever we're dealing with, to account pursuant to existing colonial law. We do make novel arguments, but they're usually based in human rights and within the colonial legal structure. And that can be a very effective avenue. That's effectively what Aboriginal law is— we took colonial law and we tried to leverage it to the best of our abilities, to benefit ourselves. In that way, I think that the actual application of Indigenous law by Pivot isn't necessarily going to be the best way for Pivot to move forward, because that's not our mandate.

But in the broader context, Pivot certainly has a responsibility to be educated about Indigenous laws and acknowledge the legitimacy of these laws. The people we work for in our 4 campaign areas (homeless peoples’ rights, sex workers’ rights, drug users’ rights, and police accountability) are overwhelmingly Indigenous people. We are overwhelmingly in that position because we have been displaced. We have had our land stolen from us. We have had our laws not be respected. We have had our systems of governance displaced or wholly replaced by things like Indian Act band structures. We are overpoliced within our own communities and within the Downtown Eastside. We are discriminated against, particularly those folks among us who are "visibly Indigenous." We experience the highest levels of poverty in Canada. And the list goes on. Ultimately, I think everyone who works at Pivot hopes that Pivot doesn't need to exist one day because we aren't faced with these problems.

I think the important part is to acknowledge that we are working within somebody else's lands, that there are other laws that apply here other than the laws we're seeking to apply and to understand those to the greatest extent possible while still fulfilling our own mandate with Pivot because we do important work.

I also think that Pivot has a responsibility, and we've been doing this work, to recognize the fact that we're working within somebody else's territory; Musqueam, Squamish, and Tsleil-Waututh lands, and we also do work in other territories as well when our work takes us outside of what is known by many as Vancouver. I think it's important that we don't take our position as a given and we need to understand our relationship with the peoples whose territories we're on. We need to understand what our reciprocal obligations are, if there are any, and we also need to be ready for the answer that maybe those First Nations don't even want to engage with us at that point in time. But I think the important part is to acknowledge that we are working within somebody else's lands, that there are other laws that apply here other than the laws we're seeking to apply and to understand those to the greatest extent possible while still fulfilling our own mandate with Pivot, because we do important work.

Photo: Pivot board and staff, and Decolonizing Practices facilitators, Ta7talíya Michelle Nahanee, Charlene Seward, and Lloyd Attig, after Sínulkhay and Ladders workshop as part of Pivot’s ongoing organizational development work | February 2020

Q: What general steps or actions should Canadian legal advocacy organizations take on the path to recognizing Indigenous laws?

A: I'd say first, we can always do more than what it is that the Supreme Court of Canada has said— that is always the minimum. That's the base level. You can always go beyond that. I think that we— legal advocacy organizations— should stop accepting the status quo as the status quo, essentially. Stop saying, “well, the Supreme Court of Canada said that this is what we're going to adhere to and we're gonna take the most basic interpretation of what that is and say that that's the law.” I think that we can look at something and say, “that is fundamentally wrong.” And legal advocacy organizations do this all the time. We say there's something fundamentally wrong with this, that law is obviously racist or affects somebody disproportionately. Canada’s ostensible sovereignty and underlying title cannot be convincingly explained by Canadian law without implicitly relying on racist doctrines. Clearly, it doesn't make sense. You can't justify it by looking back at what has been said. Really, the justification for Crown sovereignty is an affront to the principles Canada's legal system is ostensibly based on, in my opinion. Just from that perspective, we can look at that and accept that as wrong and work towards righting that rather than accepting it as a given or accepting Aboriginal title as the highest possible landholding that Indigenous people can have.

Beyond that, also just talking about and treating Indigenous law as law and to stop relegating it to the position of something that's interpretive or something that we need to figure out how to shoehorn into colonial law. To stop trying to develop programs that pay lip service to Indigenous law. I think there's a real tendency to trivialize Indigenous law and to treat Indigenous law as something that, again, only needs to be taken into account or needs to be partially considered, without actually giving it any power or force in its own right.

We need to understand that laws are specific to places and peoples, that do not necessarily align with colonial borders.

I think that it's important to recognize that, unlike Aboriginal law, Indigenous law is not any one thing. And I think organizations need to stop treating all Indigenous people like their input is going to matter exactly the same on a certain question, in a certain territory. Sure, from an Aboriginal law perspective maybe we could explain Aboriginal law sufficiently in any area. I could read an Aboriginal law decision, for example, within Musqueam territory and I could explain that decision probably as good or better than most Musqueam people. But, when it comes to their laws I shouldn't even be in the conversation! We need to understand that laws are specific to places and peoples, that do not necessarily align with colonial borders.

Q: In the bleak image of hundreds of years of colonial powers attempts to suppress Indigenous legal systems, and the drain of Indigenous Nations’ resources leading to comparatively tiny victories brought about by Aboriginal law cases, what brings you hope?

A: What brings me hope? Well, for one, it's just the level of awareness that has developed in even the short time that I've been a lawyer. It brings me hope that we have another generation coming up who is hopefully not going to act in the way that the current generation or the generations that came before acted. And I'm not talking about— well, I'm talking about Indigenous people to a certain extent– but I'm also talking about settler communities.

Indigenous youth give me hope… of course, the resilience, the resourcefulness, and the intelligence of our old people… that also gives me hope.

Indigenous youth give me hope. But also, I just kind of touched on this, non-Indigenous youth. The level of organization that the youth have, the level of passion that they have, their seeming inability to be placated by, you know, vague promises or platitudes, and their real sense of what's right and what's wrong. And we saw that in very stark terms with what was going on with the Wet'suwet'en. Because almost everything that we saw was organized, ran by, completely put together by Indigenous and non-Indigenous youth, which is amazing. Our youth today are just so aware and so smart. And that's what gives me hope— what has developed up to this point can't stand because it doesn't make sense and it's racist and it doesn't even make sense within the context of colonial law. I think there's only so long something like that can stand before someone points at it and says, “this is utterly ridiculous.” And I think that this coming generation is probably going to be the one to do it, if not the one after that.

Every generation makes more and more progress, we do make gains, and we do start to expose that the way that the colonial law interacts with and treats Indigenous people is just so utterly ridiculous. I think that people are seeing that; I have conversations with young people all the time and they say, “how is this the law?” And my answer is always, “I don't know.” But I think they're going to figure that out and change things. So, I'm very excited about that. That absolutely gives me hope; the young people. Of course, the resilience, the resourcefulness, and the intelligence of our old people, and the young people being guided by them, that also gives me hope.


Further Reading List

Indigenous Law

Indigenous Law / Indigenous Legal Traditions Guide, UVic Indigenous Law Research Unit (ILRU)
Making Space for Indigenous Law, JFK Law Corporation
Indigenous Law Resources, West Coast Environmental Law (WCEL) 

Aboriginal Law

Aboriginal Rights, UBC Arts Indigenous Foundations
Aboriginal Law Explainer, DGW Law Corporation
First Peoples Law's Publications, First Peoples Law

Both

First Peoples Law's Reading List, First Peoples Law