The History of Canadian Law

By Maya Rosebrugh-Galipeau

There exist three main legal traditions in Canada, the two primary ones being Common Law, seen across provinces and territories, and Civil Law used in Quebec and the third being Indigenous Law. Indigenous law exists separately from the two other systems and while it shares aspects to Aboriginal Law, it is a distinct legal system. Canada is recognized as a multi-judicial country where Indigenous legal orders exist alongside common law and civil law. 

Indigenous Law

The Indigenous People’s Atlas of Canada estimates that First Nations people have lived in Canada (deriving from the Huron Wendat-Iroquois word Kanata, meaning village) since approximately 1000 BC. Before colonization, beginning by the claiming of the colony of New France in 1534 by Jacques Cartier, Indigenous communities created and followed their own laws, since time immemorial. 

Indigenous communities were organized into sovereign nations: each community had defined territories, each containing their own culture, economy, system of government and laws. Each territory was self-governing and there existed complex systems of trade, and diplomacy between them as well as conflict resolution. There existed intricate political confederacies and sophisticated alliances to manage relations and security. Notably, the Haudenosaunee (Iroquois) Confederacy formed around 1142 represented a powerful alliance of nations that influenced a vast territory. Another example of inter-nation cooperation was the Blackfoot Confederacy in the Great Plains (around the south of Alberta, Saskatchewan and Manitoba). 

These sophisticated legal systems and laws were federally adopted in 2021 through the United Nations Declaration Act for the Rights of Indigenous Peoples (UNDRIP), which required federal laws to cooperate (and align) with First Nations, Inuit and Métis communities' needs and wants. 

Some Indigenous Legal Orders found within the Declaration of First Nations

• The Creator gave us laws that govern all our relationships to live in harmony with nature and mankind.

• The Laws of the Creator defined our rights and responsibilities.

• We continue to exercise the rights and fulfill the responsibilities and obligations given to us by the Creator for the land upon which we were placed.

• The Creator has given us the right to govern ourselves and the right to self-determination.

• The rights and responsibilities given to us by the Creator cannot be altered or taken away by any other Nation.

Civil Law

Fast forward to Jaques Cartier claiming New France (parts of present day Newfoundland and  Labrador, New Brunswick, Nova Scotia, Prince Edward Island, and Quebec) in 1534 for the French king, Francis I. These areas were inhabited by various Indigenous communities and subsequently colonized by France until 1763. Throughout this time, the law practices were an unbalanced mix of Indigenous customary laws and French Colonial law now referred to as Civil Law. 

Civil law relies on written legal codes, containing concise and broadly applicable texts avoiding factually specific scenarios, that function as the main source of law. The original text was the French Napoleonic Code which has been revised to create the Civil Code of Quebec (C.c.Q) 

These comprehensive statements of rules present general guidelines to deal with conflicts. In order to maintain consistency, the code is examined followed by an analysis of the precedent to create a solution. 

This legal system is more widespread, with 60% of the world’s population, notably used in Continental Europe, South America and select countries in Africa. 

In 1763, the Treaty of Paris was signed to end the Seven Years' War, the first global war. This war was primarily fought between the British Coalition (Great Britain, Prussia, the Haudenosaunee (Iroquois) Confederacy, among others) and the French Coalition (France, Austria, Russia, Anishnabek (Algonquin)  and the Wendat (Huron) and more).

The British emerged victorious and established itself as the leading colonial power, requiring France to cede New France to them. Once gaining control of certain parts of Canada through this treaty, Britain would spend the next 200 years taking over the modern country’s entire landmass in stages through treaties and territorial transfers. 

Aboriginal Law

Aboriginal law contains colonial roots and deals with relationships between the Crown and Aboriginal peoples and the unique constitutional rights of Aboriginal peoples. Commonly known evidence of these laws would be the Royal Proclamation of 1763 (creating boundaries for territories & to control the fur trade), the Constitution Acts of 1867 (the act of the Union of Canada) and the Indian Act (the governing aspects of life for Indigenous peoples in Canada with the goal of assimilation to European culture). This system of law was imposed by British colonial powers, and the Canadian Government and legalized through courts and legislatures. There was no input from Indigenous peoples and most laws served to oppress and assimilate the Indigenous population. 

Common Law

During their rule, the British implemented their own laws in Canada, modeled after their system, known as common law. Around 35% of the world, some in part due to historical colonial ties with Great Britain, follow this system. 

Common law relies heavily on judicial precedent, meaning past court decisions guide judges when deciding new cases. Judges play an important role in interpreting the law, and when necessary, new legal doctrines are created or existing ones are modified to reflect modern social values. Common law also operates alongside statutory law, allowing the legal system to remain flexible and responsive to change. 

Work Cited

Asch, J., Williamson, T., & Indigenous Law Research Unit – University of Victoria Faculty of Law. (2025). Introduction to Indigenous Law. In Professional Legal Training Course 2025 Practice Material Introduction to Indigenous Law (pp. 1–22). Law Society of British Colombia. https://www.lawsociety.bc.ca/Website/media/Shared/docs/becoming/material/Indigenous.pdf

Canadian Geographic. (2025). Indigenous Peoples Atlas of Canada. Indigenouspeoplesatlasofcanada.ca. https://indigenouspeoplesatlasofcanada.ca/forewords/

Eccles, W. J., & The Canadian Encyclopedia. (2006, February 7). Seven Years’ War. Thecanadianencyclopedia.ca; The Canadian Encyclopedia. https://thecanadianencyclopedia.ca/en/article/seven-years-war

Éducaloi Québec. (n.d.). Laws of Quebec and Canada. Éducaloi. https://educaloi.qc.ca/en/capsules/laws-of-quebec-and-canada/

Government of Canada. (2013, June 4). Royal Proclamation of 1763. Www.rcaanc-Cirnac.gc.ca. https://www.rcaanc-cirnac.gc.ca/eng/1370355181092/1607905122267

Government of Canada. (2015, October 26). Discover Canada - Canada’s History. Canada.ca; Government of Canada. https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/discover-canada/read-online/canadas-history.html

Government of Canada Department of Justice. (2017, October 16). Where our legal system comes from - About Canada’s System of Justice. Justice.gc.ca; Government of Canada. https://www.justice.gc.ca/eng/csj-sjc/just/03.html

McGloin, K., & Dalhousie University. (2024, June 13). Aboriginal Law and Indigenous Laws. Dal.ca.libguides.com. https://dal.ca.libguides.com/Indigenous-Law

McNeil, K. (2007). A Brief History of Our Right to Self-Governance Pre-Contact to Present. https://fngovernance.org/wp-content/uploads/2020/05/Self-Governance_Right_CFNG.pdf

The official website of the Royal Family. (2015, November 24). Canada. The Royal Family. https://www.royal.uk/canada