Duhaime's Law Dictionary


Aboriginal Definition:

Pertaining to things or land or person or members of a race, which are indigenous to, or first occupied a specified territory.

Related Terms: Indigenous, Indian, Metis, Inuit, Aboriginal Title

Woodward adopts this definition:

"(I)nhabiting or existing in a land from the earliest times or from before the arrival of colonists."

As the Oxford Dictionary suggests in regards to aboriginal:

"First or earliest so far as history or science gives record; the earliest known inhabitants .. as distinguished from subsequent European colonists."

Although synonymous with indigenous, the term aboriginal is in vogue in certain jurisdictions such as Canada and Australia and references the minority aboriginal population, or derivatives thereof.

Zoe Duheme, 1899For political, more so than legal reasons, the term evolves from time to time. Some variants, at this time, include Indian (for Canadian or United States aboriginals), natives and first nations.

For example, presently, in Canada, the term Aboriginal is officially preferred only in reference to all three traditional indigenous people: the natives of the North called (Inuit), all other natives (called Indians) and the people of mixed Indian heritage (called Metis).


Canada's Constitution, at §35 states:

"... aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada."

The 1996 Canadian Royal Commission on Aboriginal People self-defined their focus group as:

"… organic political and cultural entities that stem historically from the original peoples of North America…."

Some jurisdictions, such as Canada and the United States will, from time to time, use the term native in lieu of aboriginal. But in Australia, historically, the term native refers not to the aboriginals or aborigines as they are often called, but to the original European settlers.

Generally, in law, the term is used to recognize exclusive land or natural resource rights to these groups. States will define the group and in an attempt to foster or protect the heritage of the indigenous group, will protect and privilege its members or even set up distinct law in relation thereto and as between the members of the group.

Aboriginals on both America and Australia were themselves immigrants at one time so any statutory distinction is necessarily arbitrary as to tenure on a specified territory. For example, this very-white Protestant writer's great-great grand-mother was Aboriginal (pictured) but in the result, he does not qualify for status under the Canadian Indian Act.

However, the relative isolation of the first aboriginal settlers, and the failure of integration policies, provide aboriginals with a homogeneous population base from which they can assert affirmative statutory treatment.

REFERENCES:

  • Murray, James, A New English Dictionary (Oxford: Clarendon Press, 1888), Volume I.
  • Woodward, J., Native Law (Toronto: Thompson-Carswell, 2008).

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