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.
- Call to action 52 is based on data provided September 2023.
- Call to action 51 is based on data provided December 2023.
- Call to action 50 is based on data provided April 2024.
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 2024 announced $5.5 million over 3 years, starting in 2024 to 2025 to continue revitalizing Indigenous laws and legal systems through the Indigenous Justice Program.
This investment will make it possible to continue to support renewed legal relationships with Indigenous Peoples, improve access to justice and address gaps in the Canadian justice system.
Justice Canada continues to work in consultation and cooperation with Indigenous partners, other federal government departments, and provinces and territories to develop an Indigenous Justice Strategy to address the systemic discrimination and overrepresentation of Indigenous people in the justice system.
Background and Current Status
The overrepresentation of Indigenous people in the justice system is a serious and complex issue rooted in systemic racism and Canada's legacy of colonialism.
The Minister of Justice and Attorney General of Canada was directed (through the December 21, 2021 mandate letter) to continue developing an Indigenous Justice Strategy in consultation and cooperation with First Nations, Inuit and Métis, and in close collaboration with provinces and territories to address this systemic discrimination and the overrepresentation of Indigenous people in Canada's justice system.
Justice Canada is also advancing work on a number of initiatives to advance the revitalization of Indigenous legal traditions and support the enforcement of Indigenous laws and legal orders in Canada. This includes supporting external initiatives to revitalize Indigenous legal traditions, as well as negotiating Administration of Justice Agreements with communities and discussing measures to better support the enforcement of First Nations laws and by-laws at various tables.
Recent Budget Investments
Budget 2024 proposes $5.5 million over 3 years to further the revitalization of Indigenous laws and legal systems.
Budget 2024 proposes $25.1 million over 3 years to renew funding for capacity building and engagement throughout the development and initial implementation of the Indigenous Justice Strategy.
Recent progress
From the Budget 2019 call for proposals, Justice Canada received a total of 113 applications. The department then signed 27 funding agreements for projects to revitalize Indigenous laws and legal traditions, representing a total funding investment of over $10.6 million over five years, which ended on March 31, 2024. This funding supported First Nations, Inuit and Métis communities across Canada to implement Indigenous law revitalization projects.
These projects aimed to foster positive impacts for Indigenous communities and provided support to renew legal relationships with Indigenous peoples in Canada.
Indigenous peoples from coast to coast to coast have unique cultures and traditions. Revitalizing Indigenous legal systems is key to advancing reconciliation and supporting self-determination. These projects were being led by or delivered in partnership with Indigenous organizations and supported the development, use and understanding of Indigenous laws and access to justice.
Among other initiatives that aim to revitalize of Indigenous laws across Canada, on August 17, 2022, funding was announced to support the University of Ottawa's Visual Laboratory on Indigenous Legal Orders of the Indigenous Law Certificate Program. Justice Canada is providing the university $596,565 over 3 years through the Justice Partnership and Innovation Program. The certificate 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, which is set to open in late fall 2024 at the University of Victoria has entered the construction phase, with site clearance and preparation underway and various tenders being awarded. The Centre will be home to the first law program in the world to combine the study of both Indigenous and non-Indigenous laws.
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 throughout the construction phase.
A total of 38 Indigenous governments, communities and organizations (reflecting the diversity of Indigenous perspectives) engaged with their members and citizens to determine what an Indigenous Justice Strategy could and should include.
These 38 funded partners provided Justice Canada with reports on the outcomes of their engagement and recommendations for the strategy to complement the Indigenous-led engagements. Justice Canada's first wave of engagement sessions was held from November 2022 to March 2023, convening over 700 participants from various distinctions and regions. This resulted in a 'What We Learned Report', which was released on September 15, 2023. The second wave of Justice Canada-led engagement, (from April to December 2023), consisted of in-person regional sessions and broader virtual gatherings that were held across the country. There were also 14 in-person sessions at 11 federal correctional institutions and section 81 facilities. A second What We Learned Report and People with Lived Experience Report on this wave are available online.
Next steps
The Minister of Justice and Attorney General of Canada continues to work on the mandate letter commitment to advance the priorities of Indigenous communities to reclaim jurisdiction over the administration of justice in collaboration with the provinces and territories, and supports and funds the revitalization of Indigenous laws, legal systems and traditions.
Justice Canada is working, in consultation with Crown-Indigenous Relations and Northern Affairs Canada on supports for communities who wish to enter into negotiations for their own Administration of Justice Agreements. Such agreements could provide a progressive approach to supporting Indigenous justice systems through practical and meaningful ways for Indigenous peoples to assume greater control over the administration of justice in their communities. These agreements could focus on revitalizing of traditional legal structures and laws, enforcing and adjudicating of those laws, and aligning them with existing legal structures.
As part of the next phase of engagement on the Indigenous Justice Strategy, a Key Elements Consultation Draft identifying shared priorities for action will be released for a period of public validation and targeted consultation with Indigenous governments, communities and organizations, as well as provinces and territories. A co-development process with key Indigenous partners is being conducted at the same time to review the proposed draft strategy and co-develop First Nations, Inuit and Métis-specific priorities, with the goal of releasing the final co-developed strategy in fall 2024.
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 Attorney General of Canada's 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. The Directive also responds to CTA 51 by contributing to transparency on:
- the principles that will guide the federal government's legal approaches, positions and decisions taken in civil litigation involving Aboriginal and treaty rights
- the Crown's obligations 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.
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.
Additionally, Justice Canada's pleadings in cases that involve Section 35 of the Constitution Act, 1982 are now available through the Supreme Court of Canada. The Supreme Court also continues to provide information on Canada's intended or current legal positions. This is an important step towards increased openness and transparency, in terms of both Canada's commitments to all Canadians and Canada's relationship with Indigenous peoples.
Next steps
Through ongoing discussions and reviews of policies and practices, further options are being developed and considered within government to respond in a holistic manner to Call to Action 51. This will improve transparency and public understanding of the of the Government of Canada's legal positions and its work more generally.
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 includes continuing to support, wherever possible, the use of processes and systems outside of the courts in order to move towards rights recognition and implementation.
On January 11, 2019, the Minister of Justice and Attorney General of Canada issued The Attorney General of Canada's Directive on Civil Litigation Involving Indigenous Peoples (Directive). 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.
The Directive responds to the Attorney General of Canada's mandate to review of the Government of Canada's litigation strategy in order 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 rights, including Aboriginal title asserted by 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 June 2023 the Government of Canada released the 2023 to 2028 Action Plan to support the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act. The Action Plan includes 181 measures the reflect priorities and proposals identified by First Nations, Inuit, and Metis and that contribute to achieving the objectives of the UN Declaration. Two of the measures identified by Crown-Indigenous Relations and Northern Affairs Canada 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
Recent Progress
The Government of Canada is engaged in over 186 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 addressing Indigenous interests in lands and resources, including Aboriginal title.
Next steps
Call to Action 52 can be addressed through a number of ongoing policy initiatives that address Indigenous interests in lands and resources, including Aboriginal title.
Negotiated solutions toward the recognition of Aboriginal title will continue at different tables and working groups across the country.
The Government of Canada will continue working in collaboration with Indigenous partners to redesign the Comprehensive Land Claims and Inherent Right policies.