RIGHTS OF ABORIGINAL PEOPLES IN CANADA

Social and Economic Conditions

• Approximately 1.2 million aboriginal people• Different groups

– Status and non-status Indians

– Metis

– Inuit

• Different living conditions• Many languages (but dying out)• Poverty

Historical Developments

• Originally treated as nations when European settlements small and weak.

• Later prejudice and discrimination• Harmful policies

– Isolate on reserves with inadequate resources– Forced assimilation

• Result: Poverty, social problems, high unemployment.

Historical Geographical Differences

• 19th century treaties in most of Canada– Cases about how to interpret these treaties in a

modern context.

• Still no treaties in some areas (British Columbia)– Means no treaty rights– But also means land not surrendered

Arguments for How Canada Obtained Sovereignty Over

Aboriginal Nations• Were there aboriginal legal systems?

• If so, how were they (at least partially) supplanted?– Were they conquered?– Did Europeans come to unoccupied territory?– Was there some other mechanism for gaining

sovereignty?

Constitutional Framework

• Original Constitution– Central government given jurisdiction over

“Indians and land reserved for the Indians”– Central government control instead of control

by provinces.

Constitution Act 1982

• 35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hearby recognized and affirmed.

• (2) In this act, “aboriginal peoples of Canada” includes the indian, inuit and metis people of Canada.

Constitution Act 1982 Continued

• 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate ore derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada. . ..

• We will focus primarily on section 35.

Section 35 of Constitution Act 1982

• All Indian, Inuit and Metis people protected.• Rights protected are those that still existed in

1982.• If they still existed in 1982, they cannot be

abolished now, though there can be some modification.

• Therefore, key question is what existed in 1982.

Sparrow case decided test for which rights still existed

• Claim was immunity from fishing regulations

• Court held the regulations violated his aboriginal right to fish in that area.

Key points in Sparrow case

• Recognition of aboriginal legal systems• Rights could not be extinguished implicitly;

there has to be a clear intent to extinguish.• Rights exist in contemporary form• Government has trust relation to aboriginal

people.• But aboriginal right can be limited if good

reason to do so.

Test for whether a limitation on a right is valid

• Aboriginal people have priority in allocation of resources like fish.

• Justification for a limitation must be compelling.• Government must take account of the aboriginal

perspective and of aboriginal collective rights.• Case by case approach leaves much undecided

Subsequent cases

• Cases imposed new requirements but left the general principle in place.– Must show engaged in exactly that activity.– Must show right integral to the society claiming

the right– Must trace to custom that existed before

European contact.

Claim to aboriginal title to land:Delgamuukw case

• Claim to title to 58,000 square kilometers.

• Court recognized in principle but sent back to trial to decide facts.

Key points in the case

• Existing aboriginal title protected by section 35.

• Source of title– Historical occupation of the land.– Aboriginal legal systems

Characteristics of Aboriginal Title

• Private people cannot buy land. Only the government can do so.

• Ownership is collective, not individual

• Can use land in new ways but not in ways inconsistent with old ways.

How to prove aboriginal title

• Oral histories and stories

• Songs

Permissible limits on aboriginal title

• For infrastructure like roads.

• For economic development

• But government must take account of priority of aboriginal interests

• Aboriginal people make no claim to private property; only government land.

Factors to consider in deciding whether a limit on title is justified• Are aboriginal people given a chance to

participate in the activity?

• Was there consultation with them?

• Did they consent?

• Was compensation given”

Summary

• Aboriginal title recognized.

• But still questions about consequences of this recognition.

• Question whether recognition of aboriginal legal systems means aboriginal people can claim right to self-government.

Situation today

• Modern treaties in some areas more generous than 19th century treaties

• Duty to consult has had important consequences.• In eastern Canada, cases about modern

interpretation of 19th century treaties• Northern Canada and climate change.• Cultural conflicts.• Poverty still a big problem.