McGill Law Journal

Volume 71 Index

Nicole Leger — Thu, 01 Oct 2026 00:00:00 -0400

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The TRC Report, 10 Years Later:

Chief Wilton Littlechild — Thu, 01 Oct 2026 00:00:00 -0400

Thesis Survey

Nicole Leger — Thu, 01 Oct 2026 00:00:00 -0400

The Indian Act and the Gendered "Logic of Elimination”

Éloïse Décoste — Thu, 01 Oct 2026 00:00:00 -0400

One central feature of the Indian Act, still in force today, is the federal government’s unilateral power to define who is legally recognized as an “Indian.” For most of the Act’s history, First Nations women who married non-status men lost their status, could not transmit it to their children and were forced to leave their communities. In contrast, First Nations men retained their status and could transmit it to their non-status wives and their children. This article examines this legislated regime of gender-based discrimination and argues that it exemplifies how structural violence against Indigenous women has always been integral to Canada’s settler colonial fabric. To support this argument, it traces the trajectory of the “marry out” rule from pre-confederation laws through the 1951 reform of the Indian Act. The article then demonstrates how the imposition of a Victorian model of gender relations undermined Indigenous women’s roles and advanced settler colonialism. Finally, it shows how gender-differentiated harms persist despite the formal repeal of the discriminatory provisions in 1985. The article concludes by underscoring the need for a gendered lens in evaluating the legacy of the Indian Act, particularly as efforts to harmonize Canadian law with the United Nations Declaration on the Rights of Indigenous Peoples raise fundamental questions about the Act’s future.

Made by the Indian Act:

Genevieve Renard Painter — Thu, 01 Oct 2026 00:00:00 -0400

This article explores the enmeshment of the Indian Act in Canada’s legal order. Situated in the period between 1968 and 1974, it examines how this era shaped Canada’s legal edifice and how the Indian Act serves as its bedrock. While the article may also contribute to the history of Canadian constitutional, Aboriginal, and administrative law, its main purpose is to demonstrate how the colonial encounter between Indigenous and settler shapes the colonial state and colonial legality. The findings are based on original archival research. The article begins with a review of the political and legal environment in the late 1960s on the Indian Act, discrimination, and federal Indian policy. Then I examine how the Indian Act, in particular its status regime, constituted a terrain for Canadian courts, policy-makers, and legal scholars to debate a justiciable meaning of equality. I analyze how the outcomes in Drybones and Lavell shook up debates about judicial review. I show how the Lavell case catalyzed a new configuration of political alliances and schisms, across racial and gender lines, with material inequities permitting the federal government to divide Indigenous resistance.

The controversy over the Indian Act was productive for the Canadian state. It helped jurists define and understand equality and non-discrimination and nourished debate about parliamentary supremacy and judicial review, in an era when the Canadian Bill of Rights was a disappointment and calls for entrenched constitutional rights were intensifying. Lavell was the first time the Supreme Court heard from a gamut of interveners affected by a law being challenged. The case demonstrated that public opinion pressure could be a force in the court room, not just in parliament and at the ballot box, and that judicial processes could be used to change the balance of power between settler and Indigenous political leaders. In part because the dispute about the Indian Act mobilized the Canadian women’s movement, the government was able to transform a challenge against a discriminatory federal law into a dispute between different Indigenous constituencies. This deflected blame from the government onto Indigenous leaders, divided Indigenous political resistance, and undermined Indigenous self-determination.

Indigenous peoples gained little from the debate, litigation, and activism about sex discrimination in the Indian Act in the early 1970s. Instead, their demands for redress created a space for settler society to thrash out legal and political questions about equality and the proper relation between courts, the legislature, and the public. The indisputable merits of Lavell’s claim have been celebrated by government and canonized in legal treatises, but Canadian law has never fully acknowledged that Canada’s legal roads have been paved by Indigenous people demanding, and being denied, justice.

The Restoule Case:

Michael Coyle — Thu, 01 Oct 2026 00:00:00 -0400

The Supreme Court of Canada’s decision in Restoule marks a significant departure in historical treaty interpretation. By treating Anishinaabe principles of respect, responsibility, reciprocity, and renewal as foundational to the Robinson Treaties, the Court opened new ground for how historical land-sharing treaties might be understood going forward. This article examines whether Restoule’s interpretive framework should extend beyond the rare historical treaties that include express amendment provisions. It argues that historical land treaties should be treated as instances of a distinct intersocietal legal institution, created to permit peaceful coexistence during the settlement of Canada by non-Indigenous populations in perpetuity, and subject therefore to universal obligations of periodic renewal and benefit-sharing. The largely graphocentric approach that has dominated treaty jurisprudence disadvantages the Indigenous parties to historical treaties, whose legal traditions were not text-based and whose access to evidence of oral assurances made long ago becomes ever more tenuous. On the other hand, approaching the historical land treaties as imposing certain basic reciprocal obligations, regardless of whether they are stipulated in the Crown’s written texts, would bring treaty interpretation into closer alignment with the shared premises of the historical land treaty as an institution and the Crown’s own repeated historical assurances that the land treaties would benefit their peoples in perpetuity.

Construing the Ethical and Legal Concept of Cultural Safety:

Karine Millaire, Amandine Catala — Thu, 01 Oct 2026 00:00:00 -0400

Redressing the lasting injustices created by the legacy of the Indian Act requires developing and implementing proper descriptive and normative tools, such as the concept of cultural safety. Rooted in concerns for decolonization, cultural safety has attracted attention from scholars and practitioners across a range of disciplines and sectors. To date, however, this growing literature has neglected to identify and theorize the ethical and constitutional foundations of the concept. Yet doing so is crucial for the concept of cultural safety to fully achieve its normative potential. Focusing on the Indigenous context in Canada, this article proposes to fill this gap by analyzing the interwoven ethical and constitutional grounds of the concept of cultural safety. It demonstrates that securing cultural safety requires non-domination and epistemic justice. This underlying ethical normativity, in turn, influences the proper interpretation of the constitutional dimension of cultural safety. This article argues that the ethical and legal concept of cultural safety thus construed entails the full recognition and implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and constitutional standards of respect for consent, self-determination, and self-governance of Indigenous people. The article thus shows that the concept of cultural safety can serve both as a diagnostic and a transformative tool towards “Reconciliation”: the concept allows us not only to track failures of cultural safety inherent in the status quo, but also to generate normativity through law and policy.

Weaponizing Federalism for Settler Colonialism:

Zachary Jericho Couture — Thu, 01 Oct 2026 00:00:00 -0400

Canadian scholars and political thinkers have long contemplated how federalism might be used to enhance and foster legal pluralism and respect for diversity. Yet, as argued here, Canadian courts often work to deny Indigenous legal jurisdiction by leveraging constitutional principles associated with federalism. This article traces what might be called the “weaponization” of federalism to deny Indigenous jurisdiction in four parts. First, I outline the theory and legal importance of federalism as it relates to Indigenous sovereignty. Second, in using the framework of “jurispathy,” I discuss how Canadian courts deny recognizing the independent existence of Indigenous laws, even when it is in the pleadings before them and relevant to the trier-of-fact. Third, I explore how the Supreme Court of Canada, in the 2024 Dickson v. Vuntut Gwitchin First Nation decision, denied the validity of Indigenous constitutionalism, and in turn suggested that Indigenous self-governance is, at least partially, an emanation of Canadian government jurisdiction. Finally, courts have upheld a paternalistic account of section 91(24) of the Constitution Act, 1867, which allocates “Indians and lands reserved for Indians” to the federal government. This is despite the fact that, when taking into account the Royal Proclamation of 1763 and the Treaty of Niagara, there is basis to re-interpret section 91(24) not as jurisdiction over a peoples, but a duty and responsibility to them (as opposed to over them).

First Nations “Custom” Governance Disputes:

Kirsten Anker, William Shipley — Thu, 01 Oct 2026 00:00:00 -0400

Around half of First Nations in Canada regulated by the Indian Act select their “chief and council” through what is known as “custom” according to s 2 of the Act. Whether they entail traditional elements or more contemporary practices, custom selection codes stand apart from the Indian Act’s provisions on elections and can embody the recognition of Indigenous self-government. When disputes about these custom processes arise, however, the Federal Court may be called on to interpret and apply them; and the federal government, despite eschewing any jurisdiction to interfere in custom governance disputes, has a number of levers that it can, and does, pull to shape the elaboration of custom codes or other key factors contributing to the dispute. Our study falls into two parts: (1) an analysis of Federal Court decisions that illustrates some of the contradictions between the objective of respecting the culture and traditions of Aboriginal peoples and the anxiety felt in relation to ensuring that First Nations communities comply with Western notions of responsible government and (2) a review of Canadian policy with respect to custom elections. Two case-studies on instances of intervention, with respect to the Lubicon Cree and the Algonquins of Barriere Lake, help support the argument that this policy, and the legislative structure itself, is a form of colonial entanglement that must be understood in the larger context of claims to land and resources, and arrangements over funding and infrastructure.

Front Matter - v. 71, no 4

Nicole Leger — Thu, 01 Oct 2026 00:00:00 -0400