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.

Harvesting Rights

Indigenous people have inherent rights to fish, hunt, trap and gather for sustenance and for ceremony within their traditional territories. They also have section 35 constitutional and (often) treaty rights, including Self-Government and other Land Claims Agreements. This means:

• 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 - check eligibility under provincial rules
• Your Nation may be able to help if you don't qualify for legal aid

DFO and COS

Government Authorities: On Land & Water

Department of Fisheries and Oceans (DFO)

DFO officers conduct regular patrols on land and sea to catch violations of the Fisheries Act. A DFO officer's job is to ensure that individuals who are fishing are doing so subject to a recreational or a commercial fishing license. Indigenous people have an inherent and Constitutional right to fish.

Conservation Officer Service (C.O.S.)

COs enforce multiple federal and provincial statutes related to hunting, gathering (e.g. wood, medicines), trapping and human-wildlife conflict. Indigenous people have established rights to harvest for food, social and ceremonial purposes in their traditional areas. Further, COs have legal powers of search and seizure, similar to those of police officers. In certain circumstances, a CO's conduct may violate your civil liberties. If you believe a CO's actions constitute misconduct you can submit a complaint within one year to the Conservation Officer Service. Speak to a lawyer

If you are questioned by DFO or a C.O. for a harvesting activity, indicate that you are exercising your Indigenous right to harvest and present your status card or other proof. Although these are government authorities with a job to do, you have rights same as with any police agency.

https://bccla.org/wp-content/uploads/2019/02/powers-of-conservation-officers.pdf

Human Rights

International, federal and provincial legislation all exist to protect human rights, creating a number of systems for human rights complaints within Canada and internationally. Which system you can file your human rights complaint with will depend on the source of the discrimination.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

"The most comprehensive international instrument on the rights of indigenous peoples. It establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples."
- United Nations

UNDRIP was adopted by Canada in 2021. A number of Provinces have also adopted UNDRIP. There is still debate over how to genuinely implement UNDRIP in Canadian and Provincial jurisdictions.

"It is currently unclear what role the Declaration plays in Canadian law: some governments have concluded the Declaration has no or very little role, while the courts have found that rights and principles in the Declaration must inform the interpretation of any law or government action relating to First Nations peoples."
- Assembly of First Nations

Freedom of Information

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