RIGHTS OF ABORIGINAL PEOPLES IN CANADA

1
RIGHTS OF ABORIGINAL PEOPLES IN CANADA
2
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

3
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.

4
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

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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?

6
Constitutional Framework

• Original Constitution
• Central government given jurisdiction over
  Indians and land reserved for the Indians
• Central government control instead of control by
  provinces.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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Claim to aboriginal title to landDelgamuukw case

• Claim to title to 58,000 square kilometers.
• Court recognized in principle but sent back to
  trial to decide facts.

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Key points in the case

• Existing aboriginal title protected by section
  35.
• Source of title
• Historical occupation of the land.
• Aboriginal legal systems

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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.

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How to prove aboriginal title

• Oral histories and stories
• Songs

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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.

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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

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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.

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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.