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.