Although generalizations about definitions of Aboriginal rights are difficult due to the diversity of Indigenous cultures, broadly speaking, Aboriginal rights are inherent, collective rights that flow from pre-contact social orders and the original occupation of the land that is now Canada.
Although generalizations about definitions of Aboriginal rights are difficult due to the diversity of Indigenous cultures, broadly speaking, Aboriginal rights are inherent, collective rights that flow from pre-contact social orders and the original occupation of the land that is now Canada. For many, the concept can be summed up as the right to independence through self-determination regarding governance, land, resources and culture. These rights are asserted by the First Nations, Inuit and Métis peoples of Canada.
Aboriginal rights, like treaty rights, are recognized and affirmed by Section 35 of the Constitution Act, 1982. The Supreme Court of Canada has held that this provision protects a spectrum of different kinds of rights, including legal recognition of customary practices such as marriage and adoption, the site-specific exercise of food harvesting and other rights that don’t involve claims to the land itself, and assertions of an Aboriginal title to traditional lands.
Proof of Aboriginal Rights
For rights other than Aboriginal title, the Supreme Court of Canada has held that claimants must demonstrate that the right was integral to their distinctive Aboriginal societies and exercised at the time of first contact with Europeans. While these may be now exercised in a modern way, practices that arose from European influences are not protected. This paradox is often expressed in relation to commercial trade in furs or fish, which the courts have seen as the product of European contact rather than integral to Aboriginal societies prior to contact. Fishing for food, community, or ceremonial purposes is, however, a protected right and may be exercised in a modern way with modern fishing equipment.
To prove title to traditional lands, the Supreme Court of Canada ruled in the important Delgamuukw case (1997) that such claims had to show exclusive occupation of the territory by a defined Aboriginal society as of the time the British Crown asserted sovereignty over that territory. In the same case, the Court ruled that the oral histories of the Aboriginal peoples were to be accepted as evidence proving historic use and occupation.
Delgamuukw Case (1997)
The Delgamuukw case was based on the claims of the Gitksan and Wet'suwet'en nations of northern British Columbia to ownership and governance of 58,000 km2 of their respective traditional territories. After the longest civil trial in BC history, these claims were dismissed, and, on appeal, a majority in the BC Court of Appeal upheld the trial judgment. In the Supreme Court of Canada, the rules about Aboriginal title noted above were laid down, but not without some internal inconsistencies in the ruling. The Court did not deal with issues of Aboriginal jurisdiction or governance in relation to those territories. Its actual judgment was that a new trial would have to be held, applying the correct law to the evidence presented. Many observers believe that the Court's explicit encouragement of a negotiated settlement was the primary objective of its judgment and that the legal issues will be subject to further refinement in future cases.
An example of a legal issue not fully resolved by the Court is the suggestion that Aboriginal title carries with it the exclusive right to use and occupy lands. While the full Court did not endorse that suggestion, serious disputes flow from it in cases where the current occupation is not exclusively Aboriginal people and where resource companies and other interests seek to carry on or expand their own uses of the same lands. Several court cases have already been launched over these issues and the trend seems to be to ensure that proper administrative and consultation requirements are met, while permitting resource exploitation and development to continue in the overall public interest.
Nisga'a Final Agreement
Although not formally negotiated as part of the BC treaty process, the Nisga'a Final Agreement was signed after 25 years of negotiation following the Calder case (1973). The content of the treaty and the ratification process were subjected to intense debate, and were challenged in court.
Upon Parliament’s passage of the Nisga'a Final Agreement Act in 2000, the treaty became the first modern-day treaty in BC and the fourteenth modern-day treaty in Canada to be negotiated from 1975–2000. The Nisga'a Final Agreement gave the First Nation the right to self-government within the 2,019 square kilometres in the Nass Valley to which the Nisga’a hold title.
The Nisga'a Final Agreement was seen as a groundbreaker for the BC treaty process and as indicating whether the Court's aspirations for negotiated settlements, as expressed in the Delgamuukw case, would be realized. Other BC Aboriginal groups continue negotiations of their claims. The Tsawwassen First Nation and the Maa-nulth First Nations finalized agreements in 2009 and 2011, respectively. In February 2015, there were 58 ongoing comprehensive claims negotiations in British Columbia.
Sources of Aboriginal Rights
Aboriginal peoples have traditionally pointed to three principal arguments to establish Aboriginal rights: international law, the Royal Proclamation of 1763 and the common law as defined in Canadian courts. Only the last argument has met with any success in the courts, although Aboriginal groups continue to participate internationally in United Nations working groups concerned with Indigenous populations and minority rights. The Royal Proclamation of 1763 is now considered to be a historic expression of the common law rather than an independent source of legal rights.
Content of Aboriginal Rights
No Aboriginal right, even though constitutionally protected, is absolute in Canadian law. Fishing rights, for example, are not exclusive in the sense that only Aboriginal peoples can exercise them and they are not immune to regulation by other governments. Aboriginal title, on the other hand, may give rise to an exclusive right to use and occupy lands, but that right may be infringed upon by the government for purposes such as economic development, power generation, or the protection of the environment or endangered species. Infringement of Aboriginal rights or title must be justified by non-Aboriginal governments on the basis of a legitimate government purpose and recognition of the constitutional protection of the rights being affected. There may also be a requirement for prior consultation with the Aboriginal peoples concerned and compensation in some circumstances.
The duty to consult — and the issue of what levels of government are entitled or required to consult — has been further explored in two 2014 Supreme Court cases, Grassy Narrows and Tsilhqot’in. In Ontario, the Grassy Narrows case pushed forward the notion that provincial governments may also “take up” treaty lands for development, but in doing so, they also take on the federal government’s responsibilities to consult with Aboriginal peoples.
In Tsilhqot’in Nation v. British Columbia, the Supreme Court of Canada recognized the First Nation’s Aboriginal title and authority over 1,750 km2 of their traditional territory in the BC interior. In taking an expansive view of Aboriginal title, the Supreme Court charted a new course relative to future resource development and the process of consulting with Aboriginal groups in areas of Canada that have not been ceded by historic treaties, suggesting that the Crown in future must do more than fulfill a duty to consent: it must either obtain consent or meet legal requirements to justify infringing on Aboriginal rights.
Extinguishment of Aboriginal Rights
All courts have recognized the power of Parliament to extinguish Aboriginal rights and title up to 1982, but this was never expressly done. Aboriginal rights to hunt and fish, however, have been limited by constitutional amendment, federal legislation, and in some instances by provincial laws. In the 1990 Sparrow decision, the Supreme Court of Canada ruled that rights could be regulated if the regulation could be justified in the manner described above. In the Delgamuukw case, the Court did not rule out extinguishment after 1982, but made strong statements about consultation and compensation if rights are extinguished.
In the Bear Island case, a 1998 decision of the Ontario Court of Appeal, it was also held that delay in bringing a court action was sufficient to defeat a claim to Aboriginal title. This alone, if correct in law, would be sufficient to defeat almost every land claim that is brought to court. In the 1993 Blueberry River case, the Supreme Court of Canada applied a statutory limitation period to defeat part of an Aboriginal band's claim in respect to a surrender of reserve lands.
A New Era
The inclusion of Section 35 in the Constitution Act, 1982, signalled a new era of judicial and political opinion on the question of Aboriginal rights. The Guerin (1984) and Sparrow (1990) decisions of the Supreme Court of Canada created and described the duty of the Crown to act as a fiduciary in its dealings with Canada's first peoples and justify its conduct when protected rights are interfered with or infringed. The full scope of this fiduciary (legal) obligation has yet to be determined.
The Sparrow case (1990) was the first decision by the Supreme Court of Canada to interpret Section 35(1). The court did not set limits on the types of rights that can be categorized as Aboriginal rights and emphasized that the rights must be interpreted flexibly in a manner "sensitive to the aboriginal perspective." The Court stated that Section 35 only protects rights that were not extinguished prior to the date the Constitution Act, 1982, came into effect.
Although Aboriginal rights have yet to be given a comprehensive definition in law, most Aboriginal peoples assert that they include the right to Aboriginal self-government. The Supreme Court of Canada has yet to directly address that issue. This was, however, a subject extensively studied by the Royal Commission on Aboriginal Peoples, which reported to the federal government in 1996. The Royal Commission proposed solutions for a new and better relationship between Aboriginal peoples and the Canadian government, including recognition of the right of self-government, settlement of land claims, measures to eliminate inequities between Aboriginal and non-Aboriginal peoples in Canada, and the creation of Aboriginal justice systems.
On 14 April 2016, the Supreme Court ruled unanimously that the legal definition of “Indian” — as laid out in the Constitution — now includes the Métis and non-status Indians. This ruling will facilitate possible negotiations over traditional land rights, access to education and health programs, and other government services.
While a new emphasis on issues surrounding Aboriginal rights and title arose in the 1990s, their content and priority continue to evolve judicially and through the negotiation and implementation of self-government agreements between Aboriginal peoples and the Government of Canada. Although Section 35 and the concept of fiduciary obligation have placed limits on previously acknowledged power of government to extinguish or regulate Aboriginal rights, it is yet to be seen how effective those limitations will be in preventing future incursions or infringements. Over the long term, it is likely that these issues will need to be addressed through negotiated political resolution.
Report of the Royal Commission on Aboriginal Peoples (1996); C. Bell, Alberta's Métis Settlements Legislation: An Overview of Ownership and Management of Settlement Lands (1994); D. Smith, The Seventh Fire (1993); O. Dickason, Canada's First Nations (1992); P. Tennant, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849-1989 (1990); K. McNeil, Common Law Aboriginal Title (1989); M. Boldt and J.A. Long, eds, The Quest for Justice (1985); B. Morse, ed, Aboriginal Peoples and The Law: Indian, Inuit and Métis Rights in Canada (1985); M. Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution (1984); D. Sanders, "The Rights of the Aboriginal Peoples of Canada," Canadian Bar Review 61 (1983); B. Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (1983); K. Lysyk, "The Indian Title Question in Canada: An Appraisal in Light of Calder," Canadian Bar Review 51 (1973); P. Cumming and N. Mickenburg, Native Rights in Canada (2nd ed, 1972).