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.

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."