1. Overview of Canadian Law
The Canadian legal system was developed with the goal of establishing a set of standards that outline what is to be considered minimally acceptable behavior. Broadly speaking, federal and provincial laws are those that all Canadian citizens are expected to follow. Provincial and territorial laws may mirror federal laws, but they may also differ in both content and application.
No system of law is perfect, and the Canadian system is no different as evidenced by the difficult history endured by Indigenous people in this country. A primary goal of the Indian Act (an Act that is still in full force and effect) was the assimilation of Indigenous peoples for the common good. The principle of the common good applied in this example is not a version that views the values, cultures, history and experience of all people equally and inclusively.
It is important to note that there are Indigenous Nations that have Self Government Agreements (for example, the First Nations within the Anishinabek Nation and Nisga) which provides the legal authority to make their own laws in certain areas of jurisdiction. This may include, but are not limited to education, elections within the First Nations, language and culture. Each Self Government agreement is unique to the context and needs of the Nations that are a party to the Agreement which may result in variations across Agreements.
First Nations self-government agreements in Canada are agreements between the federal government and a specific Indigenous community or nation that gives them the authority to create and enforce their own laws, manage their own finances and resources, and develop their own social programs. These agreements are seen as an important step in the reconciliation process between Indigenous and non-Indigenous peoples in Canada. They provide a way for Indigenous communities to have greater autonomy and control over their own affairs. The agreements are negotiated between the government and the Indigenous community and are legally binding. The agreements are also designed to ensure that the rights of the Indigenous community are respected and upheld.
The Canadian legal system follows the British common law system, which is designed to reference past judicial reasoning, while also promoting fairness through consistency. Judges in the common law system help shape the law through their rulings and interpretations. This body of past decisions is known as case law. Judges use case law to inform their own rulings. Indeed, judges rely on precedent (previous court rulings on similar cases) for ruling on their own cases.
Laws are typically developed and applied to promote, provide, and maintain order but conflicts are to be expected given people’s varying needs, desires, objectives, values, and perspectives. The Canadian legal system provides a formal means for resolving conflicts through the courts. In addition to the federal and provincial court systems, in Canada there are alternative systems for resolving disputes including mediation, arbitration and, in Indigenous applications, restorative justice circles (a dialogical community-based healing process focusing on an offender’s obligation to repair harms that they have created or actioned).