Monday, February 4, 2013


One of the topics that I concentrated on in University was aboriginal rights and constitutional law.

It might be dry boring stuff for most folks, but absolutely fascinating for the political scientist in me.  In fact, had the black hole of party politics not caught me in it’s inescapable gravitational pull, Constitutional Law would have been my calling.

The early 1990’s was a fascinating time for aboriginal challenges. In 1982 the federal government enshrined Aboriginal rights in Section 35 of the Canadian Constitution, and in Section 25 of the Charter of Rights in Freedoms, the government further ensured that Charter rights cannot “abrogate or derogate” from Aboriginal rights. 

The lack of consensus on what specifically qualifies as an Aboriginal right continues to be determined through the court system. Many land mark cases have confirmed and expanded on the definition of aboriginal rights.Aboriginal rights are inherent.

There are two types of aboriginal rights: specfic and general. The following excerpt is  form  Dr Brian Slattery,“A Taxonomy of Aboriginal Rights.” In Let Right Be Done: Aboriginal title, the Calder Case, and the Future of Indigenous Rights. Hamar Foster, Heather Raven, and Jeremy Webber, eds. Vancouver: UBC Press, 2007. 111-128.)

Generic rights are held by all Aboriginal peoples across Canada, and include:
  • Rights to the land (Aboriginal title)
  • Rights to subsistence resources and activities
  • The right to self-determination and self-government
  • The right to practice one’s own culture and customs including language and religion. Sometimes referred to as the right of “cultural integrity,”
  • The right to enter into treaties.
Specific rights, on the other hand are rights that are held by an individual Aboriginal group. These rights may be recognized in treaties, or have been defined as a result of a court case. For example:
  • The Sparrow decision found that the Musqueam Band in Vancouver, B.C. had an existing Aboriginal right to fish. This right may not continue to exist for other First Nations.
  • The Powley case ruled that Métis peoples of Sault Ste Marie have an existing Aboriginal right to hunt—but this right does not apply to other Métis groups.

It is important to note that the Supreme Court has further defined Aboriginal rights, enabling the government to address them within more clearly defined parameters.

 Two cases that were particularly important were The 1990 R v Sparrow decision and the The 1996 R. v. Van der Peet. The pair were hot topics when I was working on my studies. 

The “Sparrow test” defined the scope of what constitutes an Aboriginal right and defined to what degree government can limit them. The R. v. Van der Peet decision created the “Van der Peet test” which further set parameters for the courts to determine what constitutes a valid Aboriginal right.

Another thing people need to understand is that Aboriginal rights pre-existed.  The Constitution protects them in a system that excluded their very existence. The fathers of confederation gave no heed to aboriginal rights. The contract was made with-out their participation or consideration. The court cases are a means to accommodate Aboriginal peoples’ rights within a system that had not been initially designed to recognize them.
The public seem not to be overwhelming sympathetic or informed about the evolution relationship of aboriginal rights or the relationship between First Nations people and the government of Canada

A better understanding of the source and interpretation of these rights would go a long way in understanding the ongoing dialogue. As I mentioned in my previous post on Aborginals in Newfoundland and Labrador, there were no recognized "status" Indians on the Island prior to 1972. The unlocking of aboriginal rights has been a slow process for non-reservation aboriginals.

The rules are not determined by individuals but by the government, which is all the more reason that Canadians are demanding that the federal policies towards First Nations, Inuit and Métis be more clearly articulated.


Anonymous said...

None of this crowd on the west coast ever lived on reservations. I don't see how my tax dollars should be wasted on giving them money for education, health and housing that we can not get.

It is a complete and utter sham! I am not a racist but come on. You give these people money and look what happens. A free for all. Look how badly they have wasted money in Labrador and across Canada.

Peter L. Whittle said...

Section 91(24) of what was then
known as the British North America
Act contains two distinct classes of subjects:

“Indians” and “Lands reserved for
the Indians,” not Indians on Lands
reserved for the Indians. Therefore, section 11(24) applies to Aboriginal people generally, whether on or off reserve, status or non-status.

It is the law

Peter L. Whittle said...

In earlier times, Aboriginal voices were simply silenced.
Status Indians did not get the vote until 1960, and even then the 1969 federal government White Paper on Indian policy — effectively proposing thet ermination of Indian
special status — was introduced without Indian consultation
and, as its subsequent withdrawal indicated, had little
Indian support.

Anonymous said...

The only Aboriginals in NL reside in Labrador.
The remainder were brought to the province by Europeans. They do not lead the lifestlye their ancestor led, nor do they suffer any disadvantage due to their lineage. In my opinion, they do not deserve any financial advantage over the non-aboriginal community.

Not a penny. Zero.

This whole kufuffle is simply about getting a free ride. You need no further proof than to look at how many self identified as aboriginals before the financial incentives were there.

Peter L. Whittle said...

Interesting comments, opinions that are certainly shared my the majority of the public.

A couple of questions:

1. If you discovered that you were of aboriginal ancestry would you take advantage of any opportunities that status provides.

2. Would you not agree that most of these new applicants had no idea of their heritage until recently. In those cases, what would you say about the "free ride"

3. Is your issue with the individuals who have to have their family trees and attachment to "traditional ways" confirmed or the courts/government who establishes the tests.

4. Are you aware than over half of Canada's aboriginal population now resides in urban areas.

5. Does the legal application and the application of these precedents matter to you at all?

6. This is not only a matter of what natives resided in Newfoundland prior to first contact but also pre-confederation. The Charter and the Constitution is clear that the Federal government is responsible for all Indians in Canada. Even if the aboriginals you refer to did emigrate to Newfoundland, they would still be protected by the honor of the crown. There is not a land claim at play here.

Anonymous said...

It is all about money. The government is not a cash cow. These people need to get off their collective arse and get jobs like the rest of us. From welfare to god dam Indian money.They are owed nothing but they gets it!

Anonymous said...

Newfie Indians are just bayman trading up from pogie.

JMackey said...

Interesting comments...having been involved in Aboriginal Section 35 consulutaton and its evolution over the past 7 years, the 'tough crowd' reading your post might explode if you did a post on that!

Peter L. Whittle said...

J, tough crowd. Send me a note at my home email. Love to pick your mind a little.