Rights and Protections (Legal Information for Indigenous People: National Edition)

Why Do Indigenous People Have Special Rights?

Indigenous people have special rights under Canadian law because their ancestors had distinct legal traditions and rights in their lands before Europeans began to colonize what we now call Canada.

While ancestry is an integral part of Indigenous identity, it is incorrect to describe Indigenous Peoples' rights as 'race-based'. Indigenous people have special rights because they are part of a distinct Indigenous nation with its own language, culture, political systems and its own land base and legal orders.

Indigenous Peoples' rights were not bestowed on them. They are inherent rights that pre-existed colonization and are not limited to "Aboriginal rights" identified by Canadian courts. Some Indigenous Nations entered into treaties with Britain and later Canada. As part of the treaty, the Crown agreed to honour and respect the Indigenous Nation's pre-existing rights. Later, s. 35(1) of the Constitution Act, 1982 provided constitutional protection to these treaty rights and other rights, but s. 35(1) is not the source of these rights.

Bruce McIvor, "Indigenous Rights in One Minute"

Constitutional Rights

"Aboriginal rights" are unique legal rights held only by Indigenous peoples. They are protected by section 35 of the Constitution. Aboriginal rights protect activities and practices that are important to the distinctive cultures of Indigenous people and include a range of cultural, social, political, and economic rights including the right to land, as well as to fish, to hunt, to practice one's own culture, and to establish treaties. Aboriginal rights are held by Indigenous communities and exercised by members of those communities.

Instituted in 1982, Section 35 of the Canadian Constitution "recognizes and affirms existing aboriginal and treaty rights including land claim agreements, and guarantees those rights equally to "both male and female persons." It also clarifies that "aboriginal peoples of Canada" includes "Indian, Inuit, and Métis" peoples.

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.

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