The words we use can have a powerful impact on how we think and act. In recent years, there has been a concerted effort to replace the term “Aboriginal” with “Indigenous” when referring to First Nations peoples. This shift is meant to be more respectful and inclusive while discontinuing using outdated, offensive terms such as “Amerindian” and “Indian.” It’s important to understand that these terms can be associated with colonialism and assimilation, and they don’t reflect Indigenous peoples' diverse cultural and linguistic identities. When writing or translating, we should be mindful of the cultural and historical context. If you want to learn more about the importance of language and its impact on cultural identity and representation, read on.
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The Importance of Language
As a translator, it’s essential to understand the nuances and connotations of different terms. The language used to refer to different cultural groups is an ever-evolving issue and can be a tool for change. By advocating for “Indigenous” instead of “Aboriginal” or other outdated terms such as “Amerindian,” we can help shift the narrative and move towards a more inclusive language that better reflects the diversity and complexity of Indigenous cultures and identities. Ultimately, we should respect the preferences of individuals and communities, listen to their perspectives on language and cultural identity, and learn from them.
Legal and Cultural Significance in Terminology
Especially when working with legal texts that pertain to Indigenous peoples, it’s important to realize that the legal systems of Indigenous communities are complex, diverse, and rooted in Indigenous societies. It’s great that we’ve acknowledged the existence of Indigenous law, but what about Aboriginal law? In the context of the legal system in North America, specific terms have legal and cultural significance. The Canadian Bar Association states
“Aboriginal law is a body of law, made by the courts and legislatures, that largely deals with the unique constitutional rights of Aboriginal peoples and the relationship between Aboriginal peoples and the Crown [the government]. Aboriginal law is largely found in colonial instruments (such as the Royal Proclamation of 1763, the Constitution Acts of 1867 and 1982 and the Indian Act) and court decisions, but it also includes sources of Indigenous law.
Indigenous law consists of legal orders which are rooted in Indigenous societies themselves. It arises from communities and First Nation groups across the country, such as Nuu Chah Nulth, Haida, Coast Salish, Tsimshian, Heiltsuk, and may include relationships to the land, the spirit world, creation stories, customs, processes of deliberation and persuasion, codes of conduct, rules, teachings, and axioms for living and governing. – From Making Space for Indigenous Law (Estella White (Charleson) - Hee Naih Cha Chist).”
Let’s briefly dive a little deeper and refresh our history to explore what the Royal Proclamation of 1763, the Constitution Acts of 1867 and 1982, and the Indian Act have to say.
The Royal Proclamation of 1763
The Royal Proclamation of 1763 was a British law that established the basis for British colonial policy towards Indigenous peoples in North America. It recognized Indigenous land rights and established a framework for negotiating treaties with Indigenous peoples. It also prohibited the sale of Indigenous lands to anyone other than the British Crown. The Proclamation was an essential precursor to the modern relationship between Indigenous peoples and the Canadian government. While the Royal Proclamation of 1763 does not refer to the term “Aboriginal,” considering it wasn’t commonly used at the time, the Proclamation refers to Indigenous peoples as “Nations or Tribes of Indians.”
The Constitution Acts of 1867 and 1982
The Constitution Act of 1867, also known as the British North America Act, established the Dominion of Canada and divided powers between the federal and provincial governments. The Constitution Act of 1982 entrenched the Canadian Charter of Rights and Freedoms and granted Canada full independence from the United Kingdom. The Constitution Act of 1867 and 1982 mention “Aboriginal” or “Aboriginal peoples.” The Constitution Act of 1867 refers to the federal government’s responsibility for “Indians and lands reserved for Indians,” while the Constitution Act of 1982 recognizes and affirms the existing Aboriginal and treaty rights of First Nations, Inuit, and Métis peoples in Canada.
The Indian Act
The Indian Act is a federal law in Canada that governs the recognition of Indigenous peoples and their rights and status. It was first passed in 1876 and has been amended several times. The Act defines who is recognized as an “Indian” under Canadian law and regulates many aspects of Indigenous peoples’ lives, including land use, education, and governance. While “Aboriginal” is also used in the Indian Act, it defines “Indian” as a person who is registered or entitled to be registered under the Act, and is used more broadly referring to Indigenous peoples in Canada, including First Nations, Inuit, and Métis peoples.
So, even though terms like “Aboriginal” and “Indian” are now considered outdated and even derogatory, we should continue using them when referring to historical documents or Aboriginal and Indigenous laws, which are distinct, but we’ll get into that in a moment. These terms are still used in legal contexts today. By using them, we acknowledge the historical context in which these documents were written and the ongoing legacy of colonialism and oppression that Indigenous peoples in Canada continue to face. However, using their specific nation or community name is more respectful when referring to Indigenous peoples in a modern context.
Lawyers Practising Aboriginal and Indigenous Laws
While writing and translating the several hundred professional profiles for our client Cain Lamarre during the website redesign, the distinction between “Aboriginal” and “Indigenous” law was brought to our attention. While our initial response was to exclusively use the term “Indigenous law” for lawyers practising in this area, we learned that there is a difference between the two terms and that they are still commonly used in legal contexts. A lawyer who practises Indigenous law may have a deeper understanding of a particular Indigenous community’s specific legal traditions and customs. In contrast, a lawyer who practises Aboriginal law may focus more on the interaction between Indigenous peoples and the government and the broader legal frameworks that have developed. For instance, Me Jacynthe Ledoux is a lawyer specializing in Aboriginal law with a diverse practice that includes representing First Nations in environmental law, specific claims, energy law, natural resources, constitutional law, youth protection and human rights. Another example is Me Zoé Robidoux, a lawyer who participates in the elaboration of agreements between First Nations and industry proponents and is involved in cases related to ancestral rights, Indigenous governance, as well as the negotiation of constitutional and administrative agreements. Nevertheless, there is some overlap between these areas of law. Individual lawyers may have expertise in both, and the Canadian Bar Association cited earlier makes the distinction between Aboriginal and Indigenous law quite clear.
Contextual Awareness in English and French Translation
In translation, awareness of the texts’ cultural and historical context is vital. For example, suppose you are translating a legal document about Indigenous rights. In that case, it’s important to understand the legal and cultural context in which the document was written. By understanding the context, you can ensure the translation is accurate and respectful of Indigenous peoples’ experiences. In French, the terms “Aboriginal” and “Indigenous” are often translated as autochtone, which may appear more straightforward. Similarly to English, the French terms amérindien, aborigène, and indien when referring to First Nations peoples should also be discontinued. However, the Canadian Bar Association reminds us of a subtle difference, even in French, where Aboriginal law translates into droit autochtone and Indigenous law translates into droit des Autochtones. Notice the subtle difference?
The Banque de dépannage linguistique of the Office Québécois de la langue française also reminds us that
“Over time, there have been changes in the names of First Nations peoples. Nowadays, some old terms or those considered pejorative are used less frequently, sometimes replaced by terms from Indigenous languages. Since the ‘70s, the name Eskimo has been gradually replaced by Inuit. More recently, we have seen First Nations replace Amerindians, which replaced Indians in common language. Much the same way, we have also seen Innu replacing Montagnais, and Wendat or Huron-Wendat, preferred to Huron.”
The terms used to refer to Indigenous peoples are an ever-evolving issue, and it’s crucial to understand the nuances and connotations of different terms. Respectful and inclusive language is important, and we should respect the preferences of individuals and communities and listen to their perspectives on language and cultural identity. When working with legal texts involving Indigenous peoples, specific terms have legal and cultural significance. While terms like “Aboriginal,” “Amerindian,” and “Indian” are now considered outdated and even derogatory, Aboriginal still has its place in the legal space. However, using their specific nation or community name is more respectful when referring to Indigenous peoples in a modern or general context. Ultimately, we should strive towards a more inclusive language that reflects the diversity and complexity of Indigenous cultures and identities.
This article highlights the importance of accurate and culturally sensitive language and emphasizes the need for professional translation services. Whether it’s for your business, legal, or personal documents, it’s essential to work with experienced and certified translators to ensure that your message is conveyed accurately and effectively. We understand that language can sometimes be complex and nuanced, and we’re here to help you navigate those complexities easily, so if you need us, get in touch!