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 CO 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
Federal Human Rights Protection: Canadian Human Rights Act The Canadian Human Rights Act prohibits discrimination based on religion, age, sex, sexual orientation, marital status, family status, disability, and conviction for which a pardon has been granted. Discrimination based on Indigeneity is likewise prohibited. It is illegal for federally regulated employers and service providers to discriminate against people, or treat them unfairly, based on these grounds. Discrimination is an action or a decision that results in the unfair or negative treatment of person or group based on these grounds. If there is a decision, policy, or practice that applies to everyone but affects you differently because you are Indigenous, you might be experiencing discrimination. The Canadian Human Rights Act provides a complaint process for those who have experienced discrimination and/or harassment from a federally regulated employer or service provider. This includes discrimination in the course of being employed or receiving services from:
- the federal government;
- First Nations governments; or
- private companies that are regulated by the federal government (such companies include banks, airlines, phone companies, and trucking companies).
Which Law to Use: Federal or Provincial
Indians and lands reserved for Indians are federally regulated, but not every organization run by First Nations people or located on a reserve is federally regulated. For example, a band office is federally regulated, but a gas station or a corner store on a reserve is regulated by the provincial or territorial government. A complaint against the gas station or corner store would be handled by the provincial or territorial human rights commission under its own human rights laws. To find out if your case is federal or provincial, talk to a human rights officer at the Canadian Human Rights Commission. They will direct you to the right place.
Early Resolution Options
If you file a complaint with the Commission, it will look first to see how you have tried to solve the problem within your organization or community. If it is possible to deal with a complaint there, the Commission will, in most cases, ask you to do that before it will proceed with your complaint. Community-based and other internal dispute resolution processes can sometimes resolve a situation quickly and easily within the organization or community. Some examples:
- using a customary process, such as asking elders for guidance or using a healing circle; or
- filing a grievance, if you have a union at your workplace.
Note: if this does not work, you have only 12 months from when the discrimination happened to file a complaint with the Commission. - CHRC
A couple more things to know about the Canadian Human Rights Act:
- Special Treatment: There are times when the Canadian Human Rights Act may allow special treatment. For example, it is not discriminatory for an employer to give preferential treatment to an Indigenous person in hiring, promotions or other aspects of employment when the primary purpose of the employer is to serve the needs of Indigenous people (like, a Band Office). You will see words like this on job postings: "Preference will be given to applicants with Indigenous (or name of Nation) ancestry."
- Sec. 35 Rights: The Canadian Human Rights Act has a special clause to ensure that it doesn't affect the constitutionally protected rights of Indigenous peoples in section 35(1) of the Constitution Act, 1982, which protects Indigenous rights such as the right to fish, to hunt or to Indigenous title.
How to Submit Complaint
Complaints can be submitted via an online form on Canadian Human Rights Commission's website or by mail. To learn how to file a complaint with the Canadian Human Rights Commission: Call Toll Free: 1-888-214-1090 or https://www.chrc-ccdp.gc.ca/en/complaints/how-file-a-complaint
Provincial and Territorial Human Rights Agencies
Each province and territory has its own Human Rights Tribunal or Commission. These agencies generally handle complaints of discrimination against privatelyrun businesses or provincial or territorial governments. This includes dealing with discrimination in restaurants, stores, schools, housing, and most workplaces. The Provincial human rights laws may vary by jurisdiction. To learn more about your province or territory's human rights agency: https://www.chrc-ccdp.gc.ca/en/complaints/provincial-territorial-human-rights-agencies
Freedom of Information
Access to Information and Privacy Laws
What Government records are people allowed to access and how do you request them? Freedom of Information Acts are important because they promote Government transparency and accountability by enabling people to:
- request government records
- scrutinize government decisions, policies and spending
- address misuse of power
Records held by the Canadian (and Provincial) Governments can potentially help groups or individuals to understand government activity or to assert claims.
Federal laws
If you want to access government records or your personal information held by the government of Canada, there are two federal laws under which you can make requests for information.
"The Access to Information Act gives Canadian citizens, permanent residents and any person or corporation present in Canada a right to access records of government institutions that are subject to the Act. The Privacy Act gives Canadian citizens, permanent residents and individuals present in Canada the right to access their personal information held by government institutions that are subject to the Act."
- Government of Canada Website
To access Canadian government records:
- Online: You can file most Access to Information Requests or Personal Information Requests online at https://atip-aiprp.apps.gc.ca/atip/welcome.do
- By phone: For general information about Access to Information or Privacy Act requests, or to ask for a request form to be mailed to you, phone the Canadian government customer service line at 1-800-622-6232
- By mail: complete an Access to Information Request form or Personal Information Request form and send it to the Access to Information and Privacy (ATIP) coordinator for the government body that holds the information you want.
- The forms and list of all ATIP coordinators, including their phone numbers, are at https://www.tbs-sct.canada.ca/tbsf-fsct/350-57-eng.asp and https://www.tbs-sct.canada.ca/tbsf-fsct/350-58-eng.asp
Provincial Laws
The Provinces have their own Freedom of Information laws and Privacy Commissioners that administrate them. Contact local government agencies or search online for privacy and access to information laws for your province or territory.
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