Equity for Aboriginal people in the legal system
Learn how the Government of Canada is responding to the Truth and Reconciliation Commission's Calls to Action 50 to 52.
Based on data provided March 2023.
50. In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.
What's happening?
Justice Partnership and Innovation Program
Budget 2019 announced an investment of $10 million over 5 years in support of Indigenous law initiatives across Canada through the Justice Partnership and Innovation Program to improve equality for Indigenous peoples in Canada's legal system.
Projects were supported in 2019 to 2020, including to the University of Alberta, the University of Saskatchewan, Dalhousie University and the Federation of Sovereign Indigenous Nations for a total of $500,000.
National Centre for Indigenous Laws
Budget 2019 also announced $9.1 million, starting in fiscal year 2019 to 2020, to support the construction of a National Centre for Indigenous Laws at the University of Victoria, a leader in this field. The National Centre for Indigenous Laws will house the university's new dual degree program in Canadian common law and Indigenous legal orders and will serve as a foundation for debate, learning, public education and partnership on the revitalization of Indigenous laws.
On January 15, 2021, the Minister of Justice and Attorney General of Canada received a supplementary mandated letter in which he was tasked to develop, in consultation and cooperation with provinces, territories and Indigenous partners, an Indigenous Justice Strategy to address systemic discrimination and the overrepresentation of Indigenous peoples in Canada's justice system.
This work is to be supported by the ministers of Public Safety and Emergency Preparedness, Crown-Indigenous Relations and Northern Affairs and Indigenous Services.
Recent progress
Justice Partnership and Innovation Program
Funding was announced in May 2021 for 21 projects with an investment of $9.5 million through the Justice Partnership and Innovation Program. This funding will help First Nations, Inuit and Métis to respond effectively to the changing conditions affecting Canadian justice policy by supporting the revitalization of Indigenous law in all regions of Canada.
These projects are intended to foster positive impacts for Indigenous communities and provide support to renew legal relationships with Indigenous peoples in Canada.
Indigenous peoples from coast-to-coast-to-coast have unique cultures and traditions. The revitalization of Indigenous legal systems is key in advancing reconciliation and supporting self-determination. These projects will be led by or delivered in partnership with Indigenous organizations and will support the development, use and understanding of Indigenous laws and access to justice.
National Centre for Indigenous Laws
The National Centre for Indigenous Laws has entered the construction phase with site clearance and preparation underway, as well as awarding of various tenders.
Throughout the project, the University of Victoria has maintained an ongoing relationship with leaders in the local First Nations. Site tours and engagement sessions with Indigenous community members have been facilitated to ensure opportunities for input and feedback to help shape the project. Engagement will continue as construction begins.
Through two calls for proposals, Justice Canada received a total of 113 applications, of which the Department has signed 27 funding agreements for projects to Revitalize Indigenous Laws and Legal Traditions.
This represents a total funding investment of over $10.6 million over five years. This funding will help First Nations, Inuit and Métis to respond effectively to the changing conditions affecting Canadian justice policy by supporting the revitalization of Indigenous law in all regions of Canada.
These projects are meant to encourage positive impacts for Indigenous communities and provide support to renew legal relationships with Indigenous peoples in Canada. Revitalizing the Indigenous legal systems is key in advancing reconciliation and supporting self-determination. These projects will be led by or delivered in partnership with Indigenous organizations and will support the development, use and understanding of Indigenous laws and access to justice.
On August 17, 2022, the department announced funding to support the University of Ottawa's Visual Laboratory on Indigenous Legal Orders of the Indigenous Law Certificate Program.
Justice Canada is providing $596,565 over three years to the University of Ottawa through the Justice Partnership and Innovation Program. The program builds on Indigenous knowledge and languages, and will be offered entirely in French. It was designed and developed exclusively for Indigenous students.
The National Centre for Indigenous Laws has entered the construction phase with site clearance and preparation underway, as well as awarding of various tenders.
Throughout the project, the University of Victoria has maintained an ongoing relationship with leaders in the local First Nations. Site tours and engagement sessions with Indigenous community members have been facilitated to ensure opportunities for input and feedback to help shape the project. Engagement will continue as construction begins.
Justice Canada continues to work with Indigenous partners, other federal government departments, and provinces and territories, on the development of an Indigenous Justice Strategy to address the systemic discrimination and overrepresentation of Indigenous people in the justice system.
Next steps
The Minister of Justice and Attorney General of Canada continues to work on the mandated letter commitment to advance the priorities of Indigenous communities to reclaim jurisdiction over the administration of justice.
This work is a collaboration with the provinces and territories, and supports and funds the revitalization of Indigenous laws, legal systems and traditions.
51. We call upon the Government of Canada, as an obligation of its fiduciary responsibility, to develop a policy of transparency by publishing legal opinions it develops and upon which it acts or intends to act, in regard to the scope and extent of Aboriginal and Treaty rights.
What's happening?
In July 2017, the Minister of Justice and Attorney general of Canada released the Principles Respecting the Government of Canada's Relationship with Indigenous Peoples as part of its commitment to advancing reconciliation with Indigenous peoples through a renewed, nation-to-nation, Inuit-Crown and government-to-government relationship based on the recognition of rights, respect, cooperation and partnership.
Subsequently, on January 11, 2019, the Minister of Justice and Attorney General of Canada issued the Directive on Civil Litigation Involving Indigenous Peoples. The Directive guides the government's legal approaches, positions and decisions taken in civil litigation involving Aboriginal and treaty rights and the Crown's obligation towards Indigenous peoples. It aims to bring the Principles to life by ensuring that Canada's relationships with Indigenous peoples are based on the recognition and implementation of the right to self-determination, including the inherent right to self-government.
Recent progress
The Government of Canada continues to review existing policies and practices on legal opinions, including through the lens of broader open government initiatives such as the Digital Operations Strategic Plan: 2018 to 2022 and the Policy on Service and Digital. Both policies speak to the importance of maximizing the release of information and data.
Canada is also in the process of reviewing the Directive to assess its implementation and to continue to move towards more collaborative processes in the civil litigation context, with emphasis being placed on facilitation, mediation and negotiations as the primary means of resolving Indigenous claims.
Canada has also shifted towards a more collaborative approach to law-making with Indigenous groups, and in various instances has adopted co-development approaches that seek to involve Indigenous rights holders and organizations in the legislative policy development process. In line with CTA 51's objectives, this has led to important opportunities for consultation and cooperation in this area, as well as greater openness and transparency in Canada's dealings with Indigenous groups in law-making.
Next steps
Through ongoing discussions as well as reviews of policies and practices, further options will be developed within government to respond in a holistic manner to Call to Action 51.
52. We call upon the Government of Canada, provincial and territorial governments and the courts to adopt the following legal principles:
- Aboriginal title claims are accepted once the Aboriginal claimant has established occupation over a particular territory at a particular point in time.
- Once Aboriginal title has been established, the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation.
What's happening?
The Government of Canada is committed to renewing the relationship with Indigenous peoples based on the recognition and implementation of rights, respect, co-operation and partnership. This means not forcing First Nations, Inuit and Métis rights-holders to use the courts to see those rights implemented.
On January 11, 2019, the Minister of Justice and Attorney General of Canada issued the Directive on Civil Litigation Involving Indigenous Peoples. The directive will guide the government's legal approaches, positions and decisions taken in civil litigation involving Aboriginal and treaty rights and the Crown's obligation towards Indigenous peoples.
The directive is part of the Minister of Justice and Attorney General of Canada's work to review the Government of Canada's litigation strategy. This is to ensure the federal government's legal positions are consistent with its commitments, the Charter of Rights and Freedoms and Canadian values.
Consistent with the 2017 Principles Respecting the Government of Canada's Relationship with Indigenous Peoples, the directive emphasizes the importance of resolving conflicts expeditiously and collaboratively, reducing the use of litigation and the courts.
Recent progress
Crown Indigenous Relations and Northern Affairs Canada has undertaken a number of initiatives that can support Call to Action 52.
The Minister of Crown-Indigenous Relations has a mandate to continue ongoing work with First Nations, Inuit and Métis to redesign the Comprehensive Land Claims and Inherent Right policies, including policy approaches for the recognition and implementation of Aboriginal title.
In 2019, Canada co-developed the Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia with the First Nations Summit and the Government of British Columbia. This policy replaces the Comprehensive Land Claims and Inherent Right policies for treaty negotiation in British Columbia. The policy identifies the negotiation of treaties, agreements and other constructive arrangements as the preferred method of achieving the reconciliation of Crown title and the inherent titles of Indigenous nations.
Where there is interest, the Government of Canada is ready to discuss using the approaches found in the Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia with negotiation partners elsewhere in the country.
In the Government of Canada's draft action plan to support the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, Crown-Indigenous Relations is proposing to take the following actions, which can support the implementation of Call to Action 52:
- Issue a public statement of Canada's rights-based approach for the negotiation of treaties, agreements and other constructive arrangements to replace the Comprehensive Land Claims and Inherent Right Policies
- Co-develop approaches for the implementation of the right to self-determination through negotiated agreements, new policies and legislative mechanisms
Next steps
The Government of Canada will continue working in collaboration with Indigenous partners to redesign the Comprehensive Land Claims and Inherent Right policies.