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Indigenous and Aboriginal Law in Canada
“Canada is a young nation with ancient roots.” These “ancient roots” include the lands, territories, rights, laws and legal orders of the Indigenous peoples (First Nations, Inuit and Métis) who lived on, used and relied on these lands prior to Canada becoming Canada. How these “ancient roots” are ultimately reconciled with Canadian law and broader societal interests lies at the heart of the practice of modern Aboriginal law.
While ‘Indigenous law’ includes the law, legal orders, jurisdiction and traditions Indigenous peoples, nations and communities have always had or that they have developed for themselves, ‘Aboriginal law’ is the law that has been developed by Crown governments or Canadian courts in relation to Indigenous peoples. At Aird & Berlis, we understand and respect the differences between Indigenous and Aboriginal law.
Today, Aboriginal law touches upon almost every facet of the Canadian legal system and society as a whole. It is a complex, dynamic and ever-evolving area of the law that has implications for Indigenous peoples, public governments, institutions, industry and third parties alike. From Supreme Court of Canada decisions to the United Nations Declaration on the Rights of Indigenous Peoples to federal, provincial and territorial laws that impact Indigenous rights, our lawyers provide comprehensive and strategic advice to our non-Indigenous and Indigenous clients on these matters.
Our Indigenous Practice Group supports and advises our clients in navigating modern Aboriginal law across Canada from ensuring consultation obligations owing to Indigenous peoples are met to putting in place equity, partnership and business arrangements that advance reconciliation. We strive to find mutually agreeable, durable and ‘win-win’ solutions for our clients. We also support our Indigenous clients in advancing, revitalizing and implementing their inherent rights and jurisdiction and legal orders, as Indigenous law.
Our Team is comprised of Indigenous and non-Indigenous lawyers who have a deep understanding as well as extensive experience and expertise in advising on both Aboriginal and Indigenous law.
Our Team brings together negotiators, litigators, business, tax, real estate and intellectual property law experts who have decades of experience to develop and deliver on strategic, comprehensive, efficient and durable solutions for our non-Indigenous and Indigenous clients. This enables us to advise on, leverage and further develop Aboriginal law as well as Indigenous law to meet our clients’ diverse needs and ambitions.
For decades, our lawyers have acted as trusted advisors, including as general counsel, to Indigenous nations, governments, entrepreneurs and businesses across Canada and internationally. They have negotiated modern day treaties and other precedent-setting Indigenous rights recognition agreements, including equity participation, co-management, revenue resource sharing and self-government arrangements. They regularly appear in Indigenous rights litigation before the courts, including the Supreme Court of Canada. This work has resulted in our lawyers being recognized as leading practitioners in Aboriginal law by their peers.
Our Team also provides support and strategic advice to our Indigenous clients in relation to advancement and development of their own laws, jurisdiction, legal orders and inherent rights, including supporting them in the implementation of their own laws and legal systems spanning from child and family services to economic development—as Indigenous law—while respecting their inherent jurisdiction and traditions on these matters.
Our Expertise and Results
Our Team uniquely offers our Indigenous and non-Indigenous clients the depth of knowledge and client-centered approach of a specialized Aboriginal law boutique firm paired with the strength and capacities that only a full-service law firm with specialized expertise in corporate, commercial financing, real estate, tax and intellectual property law can provide.
As Indigenous peoples, nations, governments, communities, entrepreneurs and businesses continue to grow and evolve, and their legal needs become more wide-ranging, our firm’s comprehensive and single window approach meets our Indigenous clients’ specialized legal needs every step of the way.
In addition, our non-Indigenous clients benefit from our expertise in Aboriginal law and extensive work with Indigenous clients to assist them in developing enduring relationships with Indigenous peoples, nations, governments and communities. We provide strategic and sound legal advice that enables ‘win-win solutions’ to be achieved.
Our Team’s work is anchored on four pillars:
- Advocacy and Litigation on Aboriginal and Treaty Rights, Related Duties and Claims
- Negotiation and Implementation of Reconciliation-Based Agreements With Public Governments and Industry
- Advancing Indigenous Law, Jurisdiction, Governance and Self-Determination
- Economic Reconciliation and Supporting Indigenous Entrepreneurs, Businesses and Not-for-Profit Organizations
1) Advocacy and Litigation on Aboriginal and Treaty Rights, Related Duties and Claims
Our Team has extensive experience in defending, advancing, protecting and establishing Aboriginal and treaty rights through litigation. We are also well-versed and knowledgeable in advocating for and advancing the recognition of Indigenous rights in federal, provincial and territorial claims and processes, including:
- addressing and integrating Aboriginal and treaty rights within environmental assessments, consultation & accommodation processes, impact benefit agreements and related matters associated with resource development projects;
- advancing litigation to protect and establish Aboriginal and treaty rights through strategic litigation, including civil actions, judicial review and regulatory proceedings;
- advancing litigation based on the honour of the Crown, including duties flowing from this constitutional principle such as fiduciary duties, the duty to consult and accommodate, the duty to negotiate and the duty of diligent implementation of treaties (both historic and modern);
- advancing litigation based on historic grievances related to Indigenous lands, Crown promises made to Indigenous peoples in the process of nation-building and inherent jurisdiction and Indigenous laws;
- developing, filing and advancing specific, comprehensive and other Indigenous historical grievances and claims against the federal, provincial and/or territorial governments; and
- securing and advancing reconciliation-based negotiation processes with federal, provincial and territorial governments, including, Recognition of Indigenous Rights and Self-Determination (RIRSD) discussion tables and related federal mandating processes.
2) Negotiation and Implementation of Reconciliation-Based Agreements With Public Governments and Industry
Our Team has extensive experience negotiating and implementing innovative reconciliation-based agreements, constructive arrangements and treaties (historic and modern day) with federal, provincial or territorial governments, industry and proponents that recognize and respect Indigenous peoples’ rights, including successfully reaching:
- memoranda of understanding and relationship agreements with federal, provincial, municipal governments, Crown agents, proponents, industry and other Indigenous peoples (i.e., inter-nation agreements);
- consultation and accommodation agreements;
- consent-based arrangements for mining, energy and other resource development projects, including reaching impact benefit agreements;
- resource revenue sharing arrangements;
- equity partnerships, joint ventures, commercial agreements and various other business transactions;
- modern-day treaties and land claim agreements and related interim measures and arrangements on specific priority jurisdictions or areas;
- self-government agreements;
- co-management agreements and shared or co-jurisdiction arrangements on land use planning and resource development;
- harvesting agreements; and
- taxation and fiscal financing agreements related to Indigenous lands, self-government, and the implementation of modern-day treaties and land claim agreements.
In addition, our Team provides support for Indigenous governments by:
- drafting tender documents, procurement documents and contracting terms related to mandatory contracting, set asides and inclusion of Indigenous business opportunities in large infrastructure and mining projects;
- advising on addition to reserve, flooding claims, boundary claims, treaty land entitlement claims, and the reconciliation of other outstanding Crown legal obligations and promises to Indigenous peoples;
- negotiating land use, project participation, and co-operation and consent agreements with Indigenous peoples and governments; and
- advising and representing our clients in federal, provincial and territorial environmental assessments, regional assessments, permitting, agreements and regulatory processes.
3) Advancing Indigenous Law, Jurisdiction, Governance and Self-Determination
Our Team invests deeply in working with Indigenous peoples, nations, governments and communities to advance their vision of self-determination and provides supports for the full range of governance-related matters that may arise including:
- providing day-to-day advice on internal decision-making making processes, employment, conflict of interest and human rights matters;
- navigating jurisdictional issues, including those related to policing and law enforcement on-reserve lands;
- assisting with consultation and accommodation-related matters, including with federal, provincial, territorial and municipal governments, proponents and industry on projects or developments;
- advising on cultural heritage protection and Indigenous intellectual property matters, including placekeeping and placemaking practices;
- supporting Indigenous governments in developing their own laws, constitutions, policies, etc. based on their inherent jurisdiction, including designing and implementing community consultation or ratification processes for Indigenous laws or constitutions;
- supporting Indigenous governments in developing land-use codes, membership codes and self-government-related policies; and
- advising on Indian Act election and membership issues, drafting by-laws, on-reserve housing matters, water and wastewater contracting and infrastructure needs.
4) Economic Reconciliation and Supporting Indigenous Entrepreneurs, Businesses and Not-for-Profit Organizations
Our Team brings together lawyers who have specialized expertise in corporate, commercial financing, real estate, tax and intellectual property law and extensive experience working with Indigenous peoples to provide a one-window solution for all Indigenous entrepreneur, business, for-profit and not-for-profit needs. Our Team regularly works with our Indigenous clients on:
- advising on and establishing business organizations and structures for Indigenous entrepreneurs and businesses, including Indigenous equity participation in resource development projects;
- advising on corporate transactions such as mergers and acquisitions and corporate restructurings;
- advising on taxation matters and tax planning;
- advising on consultations and accommodation requirements with Indigenous peoples in connection with project development;
- resolving Aboriginal and treaty rights issues related to business operations;
- advising on environmental assessments, permitting, agreements and regulatory approvals;
- advising on the applicability and transferability of Energy Tax Credits and Canadian Renewable and Conservation Expenses for renewable projects;
- conducting due diligence regarding Indigenous and business issues;
- negotiating joint ventures, commercial arrangements and various other business transactions with and for Indigenous peoples and businesses;
- advising on commercial lending and real estate-related advice and transactions;
- advising major financial institutions on addressing security issues on-reserve;
- advising on avoidance and determination of conflicts with Indigenous peoples;
- advising on and establishing corporate structures for not-for-profit organizations;
- by-law and structure review;
- transition/continuance to the new not-for-profit corporate statutes;
- governance best practices, fiduciary duty and conflict of interest; and
- obtaining and maintaining charitable registration.
ArticleIndigenous law is the law and legal orders Indigenous peoples have always had or that has been made or developed by Indigenous peoples. Aboriginal law is the law that public governments and Canadian c...