Protections (Legal Information for Indigenous People)

Aboriginal rights

Aboriginal rights are unique legal rights held only by Indigenous peoples. They are protected by section 35 of the Constitution, the highest law of Canada. Aboriginal rights protect activities and practices that are important to the distinctive cultures of Indigenous peoples - for e.g. fishing, hunting and Indigenous spiritual practices. Aboriginal rights are held by Indigenous communities and exercised by members of those communities.

Indigenous people may rely on an Aboriginal right as a defense to charges of illegal fishing or hunting. If you have been charged, it is best to talk to a lawyer. Key issues include: were you exercising the right in your community’s territory? Is the right an historic practice that is important to your community? Did the government interfere in how you can exercise the right? If yes, you may have a defense.

Aboriginal rights can be limited - or “infringed” - by governments. However, governments have to prove an infringement is legally justified. This involves asking: was the aboriginal right given priority over other users? Is the infringement as minimal as possible? Did the government consult with the Indigenous rights holders? If yes, the government’s law may still be legally valid even though it infringes an Aboriginal right.

Treaty rights are Aboriginal rights that have been written down and defined in a treaty. They are also constitutionally protected and can be used as a legal defense.

Hunting and fishing

Indigenous people have rights to fish, hunt, trap and gather for sustenance and for ceremony within their traditional territories.

• You do not need to obtain license or a permit.
• While harvesting, carry your Status card to support this right and firearms license (P.A.L.) if using a gun.
• For commercial fishing, you need to obtain a commercial fishing license from the Department of Fisheries and Oceans.

Indigenous harvesters may be subject to Provincial public health, safety and conservation regulations.

If Non-Status or Métis, carry proof of citizenship or membership in a Nation, or Métis harvester card and a letter of permission from the First Nation (if you’re harvesting in a First Nation’s territory).

Charged with a harvesting offence?

You may have a defence based on your Indigenous rights. Speak to a lawyer to decide your best course of action.

If you cannot afford a lawyer:

• Legal Aid BC: Indigenous Harvesting rights cases may be covered (see Legal Aid BC Lawyers)
• Indigenous Community Legal Clinic: 1-888-684-7874
• A Legal Advocate may be able to help access legal advice and representation
• Your community may be able join your defense and/or help pay for a lawyer if you do not qualify for Legal Aid

Human rights

Human rights are protected in BC by the BC Human Rights Code. The Code prohibits discrimination based on Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age.

Discrimination means being treated badly because you have one or more of those characteristics. The Code protects against discrimination in five main areas of daily life: work, housing, public services, membership in unions or associations and publications.

If you feel you have been discriminated against in one of those areas, you can make a complaint to the BC Human Rights Tribunal. The Tribunal is a special kind of court focused only on human rights issues. It can decide if discrimination has occurred, and order the party that is responsible for the discrimination to pay for any damage or harm they have caused.

Filing a complaint to the Human Rights Tribunal will take some time. It will involve providing evidence (witnesses, documents) to support the claim, and participating in a hearing where evidence is presented and questions can be asked about the evidence. The Tribunal will make a decision at the end of the hearing.

The Human Rights Tribunal has a website with very helpful information: http://www.bchrt.bc.ca

“While the BC Human Rights Code can’t address all the inequity and injustices faced by Indigenous people, it can be used to hold people and institutions accountable for discrimination.” – "Our Human Rights," BC Aboriginal Association of Friendship Centers and Community Legal Assistance Society"

https://www.bchrc.net/wp-content/uploads/2021/06/IHRC_BOOKLET-June-17-2021.pdf

The addition of Indigenous identity as a ground of discrimination differs from Aboriginal Rights as protected under s. 35 of the Constitution Act, 1982. Section 35 creates the opportunity to establish rights specific to an Indigenous community’s traditional practices (hunting, fishing etc.). Human rights are broader rights and something everyone has (like the right to discrimination free housing and health care). Indigenous identity as a ground of discrimination means you can bring a human rights claim on the basis of differential treatment due to your Indigenous identity.

BC Human Rights Tribunal

If you are Indigenous, you can self-identify as Indigenous on the complaint form and ask the Tribunal to contact you. The Tribunal will call to discuss:

• the process and process options,
• Indigenous protocols, such as an elder or smudge
• Indigenous ways to deal with the complaint.

The Tribunal has mediators who can help the parties agree about how to solve the complaint. Mediation is voluntary. An Indigenous party can tell the Tribunal that they want:

• a traditional ceremony before or after the mediation, such as a smudge, prayer, or song
• an Indigenous mediator
• an Indigenous dispute resolution approach

BC Human Rights Clinic

The BC Human Rights Clinic, part of the Community Legal Assistance Society (CLAS), provides free legal help with human rights complaints.

Contact:

For more info or to book an appointment visit:

• https://www.bchrc.net, or
• call: 604-622-1100; Toll free: 1-855-685-6222

© Copyright 2022, Bella Coola Legal Advocacy Program (BCLAP).