Aboriginal Rights To Learn and Understand

Which are Indigenous Rights?

Aboriginal rights are cultural rights that derive from the continuing usage and occupation of some territories by Aboriginal peoples. These are fundamental rights held and enjoyed by Indigenous peoples long before European contact. Because each First Nation has functioned traditionally as a distinct community, there is no official overarching Aboriginal interpretation of what such rights are. While these specific rights may vary among Aboriginal groups, they generally include land rights, resource and activity rights to subsistence, the right to self-determination and self-government, and the right to practise one's own culture and customs including language and religion. Aboriginal rights have not been granted from external sources but are the result of the self-occupation of Aboriginal peoples' home territories as well as their ongoing social structures and political and legal systems. As such, Indigenous rights are separate from those granted under Canadian common law to non-Aboriginal Canadian residents.

This is difficult to explicitly list such freedoms, since various opinions that be held by Indigenous peoples and the Canadian Government. The Crown has not recognised certain rights which Aboriginal peoples have practised and recognised for themselves. In a move to address this gap, the federal government enshrined Aboriginal rights in Section 35 of the Canadian Constitution in 1982 and the government also ensured in Section 25 of the Charter of Rights in Freedoms that Charter rights can not "abrogate or derogate" from Aboriginal rights. Yet the ensuing First Ministers' Conferences could not reach a consensus on what specifically qualifies as an Aboriginal right, and since then the federal government has recognised that while there are Aboriginal rights, what these specific rights are will have to be determined over time through the court system.

An Indigenous Rights and Crown History

During settlement and colonisation the Crown and local Aboriginal populations negotiated treaties, guided by the Royal Proclamation of 1763. The Proclamation was a British Crown document that recognised that for further colonisation, British settlers would have to resolve existing Aboriginal rights and title. The Crown guaranteed certain rights to local First Nations during treaty negotiations. Because then there has been considerable controversy within and outside the courts as to whether or not such arrangements have revoked Indigenous rights for the rights set out in the Treaty. The discussion is continuing among many First Nations.

Since the arrival of European settlers in what is now Canada, many of those rights, treaty and otherwise, have been infringed. Since the arrival of the europeans, Indigenous peoples have continuously claimed their rights, but have gained little to no recognition from the colonial institutions that enabled those abuses. Historically, several non-Aboriginal politicians have tended to endorse petitions and other acts Aboriginal peoples have taken in their struggle for recognition of their rights. Nevertheless, many non-Aboriginal legislators did not find the Aboriginal rights issue to be a government priority and adopted the general assumption that all current Aboriginal rights and titles were abolished by Crown sovereignty. Partly because of this colonial mindset arising from the Doctrine of Discovery — an international law declaration that a European colonial power may claim title to newly discovered land — Canadian legal and political institutions were not formed to address Aboriginal rights.

Brian Slattery, a legal analyst, draws a distinction between unique Aboriginal and generic rights.

All Aboriginal peoples throughout Canada hold common rights, which include:

Soil Rights (Aboriginal title)

Subsistence Legal Tools and Activities

The right to self-determination and autonomy

The right to practise a culture and customs of how can legal advice be funded one's own including language and religion. Sometimes called "cultural integrity" right;

The right to sign treaties.

In contrast, specific rights are rights held by an individual Aboriginal group. These rights may be acknowledged in treaties, or as a result of a court case. For instance:

The Sparrow decision found that the Vancouver, B.C. Musqueam Band Had an existing right to fish for Aboriginal people. For other First Nations, the right may not continue to exist.

The Powley case ruled that Sault Ste Marie Métis people have an existing aboriginal right to hunt — but that right does not apply to other Métis groups.

Many Aboriginal peoples understand their relationship with the Crown as a relationship between nation and nation, and therefore see their rights as falling within the domain of international law. Aboriginal leaders and delegations have taken their fears to international forums such as the United Nations ( UN) throughout periods of European colonisation and settlement to argue against the British Crown's imposition of its own laws and regulations on existing Aboriginal legal systems and institutions. Canada is bound by the UN Charter (1945) to promote 'good relations between nations on the basis of respect for the principle of fair rights and peoples' self-determination.'1 However, Canadian governments were hesitant to accept the Aboriginal right to self-determination because of confusion about what it would mean for Canada. To response to these issues, many Indigenous groups have told the Government of Canada that they will remain a part of Canada but with their own governance structures.

Originally, colonial governments in Canada pursued an extinction policy which meant that the rights of indigenous peoples would be lost or legislated away, sometimes in return for treaty rights. Canada and Aboriginal leaders negotiated treaties regarding the aforementioned nation-to - nation relationship. Although each treaty varied, several historical treaties guaranteed that certain payments and privileges, such as a right to hunt or fish, and privileges to education would be given to Aboriginal peoples. Nevertheless, over time, many Indigenous people learned that the Canadian state sought to subjugate them and infringe on the very freedoms they thought would be protected. Several Aboriginal leaders and activists took their issues to government, but the Canadian government consistently oppressed Indigenous communities by obstructing the channels through which they could seek recognition and redress. For instance, in the Indian Act , the government added new pieces of oppressive legislation that made it illegal for Aboriginal people to organise politically or employ legal representation for additional land claims. Such oppressive pieces of legislation were not repealed by the government until 1951. Finally, the abolition of these laws permitted Aboriginal peoples to pursue their legal and political interests in ways that had previously only been open to non-Aboriginals. This, along with other developments such as the White Paper policy proposal in the 1950s and 1960s, led to an rise in Aboriginal political organisation and advocacy in support of Aboriginal rights. Until then, many Indigenous peoples have gone to the court system to settle issues surrounding infringements of their rights.

How the tribunal tackles Aboriginal rights

Canada was planning in the early 1980s to establish a Charter of Rights and Freedoms as well as to patriotise the Constitution. Through this time, Aboriginal leaders and organisations such as the Union of BC Indian Chiefs (UBCIC) advocated for the incorporation of Aboriginal rights, hoping that their recognition in the Constitution would contribute to the security of these. After a long struggle with much debate, discussion, and revision, the Canadian government formally recognised and enshrined Aboriginal rights in Section 35 of the Constitution of Canada in 1982. However, the Constitution doesn't specifically define what those rights are. The Government stipulated that, on a case-by - case basis, these rights should be specified in court.