Legistics
First Nation(s) - Aboriginal

Introduction

The article discusses Branch policy on the capitalization of the terms "First Nation(s)" and "Aboriginal" in federal legislation.

Recommendation

The terms "First Nation(s)" and "Aboriginal" should always appear with initial capitals. In addition, the term "Aboriginal" should not be used as a proper noun, but rather as an adjective, e.g. Aboriginal people(s), not Aboriginals.

Discussion

First Nation(s)

Until now, the capitalization of this term has followed that of "band". That is, the lower case was used except in the official name of an Indian band (e.g. "council of a band" but "the Stony Band (of Indians)", and similarly "the first nations in British Columbia" or "any first nation" but "the Buffalo Point First Nation").

Despite this history in the Branch, a change in this practice is now advocated as the language appears to have evolved. A survey of various sources in print and on the Internet indicates that our practice does not reflect general usage. In the overwhelming majority of cases, "First Nation" appears with initial capitals. In fact, at least three Canadian dictionaries list the term only with initial capitals.

Indian and Northern Affairs Canada has its own terminology guide, Words First,[1] which indicates that "the term ‘First Nations (people)’ generally applies to both Status and Non-Status Indians" and that it should be capitalized when used as a noun and as a modifier, both in the singular and the plural. As the exact meaning of the term is less clear in other sources, legislative counsel must take the appropriate steps to ensure that the intended meaning is clear in the context.

The guide notes that there is no legal definition of "First Nation(s)" and that "…the provisions of the Indian Act, its regulations, other federal statutes and their interpretation by the courts take precedence over the content of (the) guide". However, the term is to be preferred over "Indian" except in certain cases, including "… in discussions of some legal/constitutional matters requiring precision in terminology". One solution to this problem that has already been used in legislation is to define "First Nation" to mean "a band within the meaning of the Indian Act".

Aboriginal

The question also arises as to whether the initial letter of the word "Aboriginal" should be written in lower case or upper case. Although the legislative corpus has been relatively consistent with its use of the lower case, except in expressions such as "Aboriginal peoples of Canada", there are valid reasons advocating the use of the upper case.

Among those reasons is the recommendation of several style guides including Practical English Usage by Michael Swan which states that initial capitals are used for "nouns and adjectives referring to nationalities and regions, languages, ethnic groups and religions" and the Canadian Style which states that the term Aboriginal is to be capitalized when referring to the Aboriginal people of Canada. The Canadian Style goes on to state that "[a]lthough the Canadian Constitution Act, 1982, uses the term aboriginal peoples in the lower case, the words Aboriginal, Indigenous and Native have since come to be capitalized when used in the Canadian context." The use of initial capital letters is not only grammatically correct but also conveys respect.

The terms "First Nation" and "Aboriginal" should be capitalized regardless of whether they are used as part of a proper name, in reference to a specific group or as a generic. To avoid any possible interpretive difficulties, when amending a text that uses the term "first nation" or "aboriginal" in the lower case or that has defined those terms using the lower case, it is recommended as good drafting practice to use the upper case and to correct other references to those terms in the existing text, including the definition, to achieve uniform expression.

Footnotes

[1] Words First: An Evolving Terminology Relating to Aboriginal Peoples in Canada was developed by Indian and Northern Affairs Canada in consultation with the Assembly of First Nations and other Aboriginal organizations as well as Treasury Board, Finance Canada and other government departments.