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Aboriginal rights FAQ

All Canadians have certain constitutional rights guaranteed in the Charter of Rights and Freedoms. Our freedom of expression, the right to vote, and many other vital democratic rights are enshrined in the law. Aboriginal people in Canada, however, also have other constitutional rights that have raised contentious legal questions.

What are aboriginal rights?

Before Europeans reached North America, aboriginal communities occupied the land and practiced traditional customs and practices such as native medicine, trapping, hunting and fishing. This prior occupancy and use of the land provides the legal basis for unique aboriginal rights. Basically, it means aboriginals were here first practicing a certain way of life, so they retain limited rights to continue their way of life.

What the law says (and doesn’t say)

Section 35 of Canada’s Constitution Act says simply: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Unlike the Charter, s. 35 doesn’t list any specific rights, which has led to legal disputes heading all the way to the Supreme Court of Canada. However, the court has said things about those rights.

  • They exist in law.
  • They may include Aboriginal title, which is a right to exclusive use and occupancy of land.
  • They are site-, fact- and group-specific. So if Alberta Cree have the right to hunt on their ancestral lands, it doesn’t mean all bands can hunt anywhere.
  • They are not absolute and may be justifiably infringed by the Crown (similar to Charter rights). 

What is aboriginal title?

This is a very similar concept to aboriginal rights, but it typically pertains more to land claims. Also like aboriginal rights, there is no specific legal definition and that’s led to court challenges.

Federal Supreme Court justice Wilfred Judson defined aboriginal title in the 1973 decision for Calder et al. v. Attorney-General of British Columbia, when the Nisga'a Nation Tribal Council claimed lands in B.C. He wrote “the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means…”

What are treaty rights?

While specific aboriginal rights are not written down and are generally upheld or denied on a case-by-case basis, treaty rights are recorded in agreements between First Nations and the government. Some treaties were strategic alliances while others surrender ancestral land in exchange for certain concessions.

Possibly the best-known example is the “Numbered Treaties,” 11 land-cessation agreements signed between 1871 and 1921. In them, aboriginal groups surrendered land for white settlement and industrial use. In return, they were promised tracts of reserve land, cash, farming equipment, allowances for hunting and fishing tools, and more.

Can aboriginal rights be infringed upon?

As with most rights, the government can still infringe upon or override them in some situations. In Canada, courts use the “Sparrow Test” – named for the 1990 SCC case R. v. Sparrow – to determine whether a right was infringed on and whether that infringement was justifiable.

To assess whether a government act infringed upon a right, the court considers if that action:

  • imposes undue hardship on the community in question;
  • is considered by a court to be unreasonable or;
  • prevents the right-holder from exercising that right.

If an infringement occurred, it can be justified if there is a “valid legislative objective,” such as limiting hunting rights to prevent an endangered species. If the government can prove it had a valid objective, the court then considers whether it upheld its duty to the affected community by asking:

  • Did the action infringe as little as possible to achieve its goal?
  • In case of expropriation, was fair compensation paid?
  • Was the affected group consulted?

The test can include other questions to assess justifiable infringement.

Read more:

Constitution Act, s. 35

Frequently Asked Questions: Aboriginal and Treaty Rights Information System