ABORIGINAL LAW & INDIGENOUS LAW

Law firm, First Peoples Law, is dedicated to defending and advancing the rights of Indigenous Peoples — their inherent and constitutionally protected title, rights, and Treaty rights, uphold Indigenous laws and governance.

“Treaties are an exchange of sacred, solemn promises between the Crown and Indigenous People. Canadian courts have emphasized that treaties are not simple one-time transactions--they are living documents. The Crown is obligated to diligently fulfill treaty promises. In doing so it must act with integrity and avoid sharp dealing.”

–Bruce McIvor, Partner, First People’s Law

Interview with Bruce McIvor

By Suzanne Forcese

Bruce's ancestors took Métis scrip at Red River in Manitoba. He holds a law degree, a Ph.D. in Aboriginal and environmental history, is a Fulbright Scholar and author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He is a member of the Manitoba Métis Federation.

Called to the Bar in British Columbia, Manitoba, Northwest Territories, and Ontario

WT: Bruce please tell us about the journey that brought you to First People’s Law.

McIvor: I was focused on working for social justice through an academic career in history until I began working in law on what I expected to be a temporary basis. My work introduced me to a world of principled, high quality legal advocacy that led me back to university for a law degree and, eventually, to establish First Peoples Law.

First Peoples Law combines my passions for law, history and social justice. Most importantly, it allows me to work with other committed professionals in supporting Indigenous Peoples' ongoing struggle for respect and justice.

WT: Please explain the difference between Aboriginal Law and Indigenous Law.

McIvor: There is a very important distinction between Aboriginal Law and Indigenous Law.

Indigenous Laws are the functioning laws of the different Indigenous Nations across the country based on their own inherent rights that predates the arrival of colonizers. Although there is diversity represented by the uniqueness of each different Nation across the country, the significant same piece is that the laws are inherent.

Aboriginal Law is the law of the colonizers whether statute law, provincial legislation, federal legislation (like the Indian Act) or whether it’s a judgment law from the court.

Aboriginal Law is usually made up by non-indigenous judges based on the existing Canadian Law. This involves constraints on what is allowable as part of Aboriginal Law.

Conflating Indigenous and Aboriginal Laws might be viewed as a form of colonization. As such it is vital to keep them separate and distinct from each other.

Some of the most exciting work we are seeing around the country is Indigenous Nations revitalizing their own Indigenous Law. This is only possible if we understand Indigenous and Aboriginal Law are not the same.

WT: Indigenous Law is described as sacred. Please explain the nuance for our viewers.

McIvor: Indigenous Laws are not simple contracts. Most Canadians might be familiar with the understanding that a law is a transactional agreement. 

When the law was first developed there was a considerable debate as to whether the laws should be interpreted as simple contracts.

The courts decided the issue was more complex.

From an Indigenous perspective they are imbued by ceremony. Sacred means they are enduring and they are meant to establish good relationships between Indigenous and non-Indigenous people.

The courts have recognized that Treaties are solemn promises between the Crown and the Indigenous. They are not simple contracts. Because they are solemn promises they invoke the honor of the Crown. They must be upheld and respected. They must not be interpreted in a technical way.

WT: What water rights come with Treaty?

McIvor: Water Rights is a real contention issue particularly for First Nations on the prairies. The question comes down to interpreting what the promise was at the time of Treaty. For all my First Nation clients we have to determine whether the rights are specifically written into the treaty document. 

Treaty includes a right to water, a right to manage water resources, and a property interest in the water. First Nations can decide how the water should be used not just on reserve (as determined by the Indian Act) but within their Treaty Territory. They have a right to clean water.

This is a point of contention between many First Nations and provincial and federal governments because they have a different view of the right to water under Treaty.

WT: You have said, “The Crown has a long history of denying the existence of historical treaties with Indigenous Peoples. With the change to the Indian Act in 1951 which removed the ban on First Nations hiring lawyers to defend their rights, Indigenous Peoples went to court to have their Treaties recognized…Regrettably, even when First Nations win court decisions confirming the existence of their treaties with the Crown, they continue to struggle to have the Crown respect their Treaty rights.”

WT: Why do First Nations struggle with the Crown respecting their Treaty rights?

McIvor: It's not that there's a lack of legal obligations on the part of the Crown, it's the lack of political will to respect those obligations.

We have more clarity now in 2026 around Aboriginal and Treaty rights largely through the efforts of First Nations to take the matter to court.

When I speak to First Nations, I encourage them to communicate with their provincial and federal representatives that as Indigenous Canadians they cherish a Canada that respects Treaty rights…not just the rhetoric of respect but the reality of respect. It’s also about coming together in a meaningful way to ensure that those rights are respected and implemented without forcing First Nations into court.

WT: Can you address the proposed referendum in Alberta and the opposition by First Nations please.

McIvor: There was a really important decision out of Alberta in December 2025. The question raised in court was whether or not it would be constitutionally admissible for a referendum on separation. The provincial government manipulated the law in an attempt to circumvent the judge's decision on the matter.

However, the decision made was that a referendum on possible separation could not happen without First Nation consent because the treaty relationship between Alberta First Nations and the Crown pre-date the Province of Alberta.

These sacred Treaty agreements were entered into before Alberta became a province in 1905. When Albert did become a province in 1905 it was not a province equal to the original province, because it did not have control of its so-called natural resources and did not have control of Crown land. It was in 1930 when Alberta had control of resources and Crown land.

The argument of the First Nations was that the senior partners in Canada are the Treaty First Nations and the Crown as represented by the King. The Provinces are the junior partner at the constitutional table. The creation of the province in 1905, the transfer of land to the Crown in 1930 were predicated on the existence of Treaties. 

The recent decision stay means the chief electoral officer cannot serve the referendum in question until the court decides. Signatures can still be collected but the next step in the process is for the chief electoral officer to certify there are enough signatures at which point the Minister of Justice becomes involved and the Provincial Cabinet then makes the final decision.

We expect there will be a decision from the court in the first part of May. The court can decide whether they can hold a referendum or whether the chief electoral officer can certify this. If the court decides yes then I expect there would be a challenge at that time on whether the Provincial Cabinet can approve the referendum.

WT: Should there be a referendum, what would happen to Treaty boundaries as they cross provincial lines at this point.

McIvor: Treaties pre-date the drawings of the Province of Alberta.

The treaties extend beyond those boundaries. I cannot predict what might happen.

The court has already decided that proceeding to separate is unlawful, unconstitutional without FN consent and they are not getting FN consent. We are not getting to the question of how they would do it because I see very little chance of it being approved by the Court.

Alberta is not Quebec. All provinces have different legal and historical circumstances. Alberta, Saskatchewan, and Manitoba were created in different circumstances. They are not part of the original provinces.

WT: What would happen to Treaty 8 water rights should Alberta separate?

McIvor: That is difficult to speculate. If separation should occur the Province would have no right to Treaty land — which is all of Alberta.

There would be a serious problem regarding water rights. In the event that separation would happen, the Province would have to confine First Nations to their reserve and disrespect their right to land and water outside their reserve boundary.

That is one of the fundamental misinterpretations of the Treaties stemming from the fundamental perpetual lie that historical Treaties were surrendered. First Nation peoples never accepted that.

Not very many court decisions address this question, but when they do usually the court looks at it and says the treaty was not surrendered. Just because governments say the land was surrendered it does not mean it is true.

It is comparable to the debate you might see going on in BC regarding Aboriginal title and the concern and fear mongering going on around last year's Cowichan decision.

WT: You have said, “Education is just as important as Litigation” and your website includes many resources including information about your books. Please tell us about your latest book Indigenous Rights in One Minute

McIvor: I give talks across Canada to Indigenous and Non-indigenous groups and found I was getting asked the same questions, so I decided to put my responses into a book that’s helpful for non-lawyers in short little chunks of information.

The book is set up with questions and answers that take about a minute to read.

I am also completing a master’s degree in creative writing to incorporate that skill set in my next book. It will be approaching the same issues from a story-telling angle.

My intent is to put out useful information about the Law so we can have a better conversation regardless of where you are on the political spectrum.

Related:

Education is just As Important as Litigation