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 August 2021.

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?

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.

Budget 2019 also announced $9.1 million over 3 years, starting in fiscal year 2019 to 2020, to support the construction of the Indigenous Legal Lodge at the University of Victoria, a leader in this field. The Indigenous Legal Lodge 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.

Recent progress

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.

Next steps

The Government of Canada will continue to implement funding processes for the approved projects.

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?

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.

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.

Through this review of policies and practices, further options will be developed to address Call to Action 51.

Next steps

Discussions will continue to take place within government to seek a holistic response to the publishing of legal opinions.

52. We call upon the Government of Canada, provincial and territorial governments and the courts to adopt the following legal principles:

  1. Aboriginal title claims are accepted once the Aboriginal claimant has established occupation over a particular territory at a particular point in time.
  2. 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.

Recen t progress

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.

The Government of Canada is engaged in over 150 discussion tables with Indigenous groups across the country that are co-developing approaches for the recognition and implementation of rights through treaties, agreements and other constructive arrangements. Discussions are focused on community-identified priorities, which may include 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.

Next steps

The Government of Canada will continue working in collaboration with Indigenous partners to redesign the Comprehensive Land Claims and Inherent Right policies.

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