Although generalizations about Aboriginal definitions of Aboriginal rights are difficult because of the diversity of indigenous cultures, it can be said that most First Nations define Aboriginal rights as inherent, collective rights which flow from their original occupation of the land which is now Canada and pre-contact social orders. For many the concept can be summed up as the right of independence through self-determination in respect of governance, land, resources and culture. It is important to note that these rights are asserted by the First Nations, Inuit and Métis peoples of Canada.
Aboriginal rights, like treaty rights, are recognized and affirmed by s35 of the Constitution Act, 1982. The Supreme Court of Canada has held that this provision protects a spectrum of different kinds of rights ranging from legal recognition of customary practices such as marriage and adoption, to the site-specific exercise of harvesting or other rights where no claim is made to the land itself, to 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 indigenous 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 influence 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 Aboriginal right and may be exercised in a modern way with modern fishing equipment.
In order to prove an Aboriginal title to traditional lands, the Supreme Court of Canada ruled in the important Delgamuukw case (1997) that such claims to title 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 (see Carrier) nations of northern BC 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 of BC Court of Appeal upheld the trial judgement. 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 judgement was that a new trial would have to be held, applying the correct law to the evidence that would be presented. Many observers believe that the Court's explicit encouragement of a negotiated settlement was the primary objective of its judgement 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 an 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 where the current Aboriginal occupation is not exclusive 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 Land Treaty
Although not formally negotiated as part of the BC treaty process, the Nisga'a Land Treaty was signed in 1998 after 25 years of negotation following the Calder case (1973). It has been ratified by the Nisga'a Nation and must also be ratified by the BC Legislature and federal Parliament. The content of the treaty and the ratification process are the subject of intense debate, particularly in BC, and court challenges have been commenced. The Nisga'a Treaty is seen as a bellwether for the BC treaty process and may indicate whether the Court's aspirations for negotiated settlements, as expressed in Delgamuukw, will be realized.
Sources of Aboriginal Rights
Aboriginal peoples have traditionally pointed to 3 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 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 indigenous 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 interfered with for other societal purposes such as economic development or power generation. 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.
Extinguishment of Aboriginal Rights
Historically, extinguishment of Aboriginal rights has been effected by way of treaty or land claims settlement rather than by legislation.
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 Delgamuukw, the Court did not rule out extinguishment after 1982, but made strong statements about consultation and compensation if rights are extinguished.
In Bear Island, 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. The Supreme Court of Canada, in the 1993 Blueberry River case, did apply a statutory limitation period to defeat part of an Aboriginal band's claim in respect of a surrender of reserve lands.
A New Era
The inclusion of s35 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.
Sparrow (1990) was the first decision by the Supreme Court of Canada to interpret s35 (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 s35 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 indigenous peoples assert 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. RCAP 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 peoples and other Canadians, and the creation of Aboriginal justice systems.
While the 1990s have seen a new emphasis on issues surrounding Aboriginal rights and title, their content and priority have yet to be fully determined judicially. It is likely that, after the year 2000, Canadian law will include a broad definition of Aboriginal rights, which includes a right to some form of self-government. Although s35 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 negotiated political resolution of these issues is needed but the furor surrounding the Nisga'a Treaty is a clear signal that such resolutions will not be easily achieved or implemented.
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).