William Henderson et al. (reference below) defines indigenous rights as inherent, collective rights that flow from pre-contact social orders and the original occupation of the land that is now Canada.
Indigenous rights (also known as Aboriginal rights, or inherent rights) are broader than Treaty Rights.
Henderson et al. note that:
“For many, [Aboriginal rights] can be summed up as the right to independence through self-determination regarding governance, land, resources and culture. These rights are asserted by the First Nations, Inuit and Métis peoples of Canada.
“Aboriginal rights, like treaty rights, are recognized and affirmed by Section 35 of the Constitution Act, 1982. The Supreme Court of Canada has held that this provision protects a spectrum of different kinds of rights, including legal recognition of customary practices such as marriage and adoption, the site-specific exercise of food harvesting and other rights that don’t involve claims to the land itself, and assertions of an Aboriginal title to traditional lands.
“For rights other than Aboriginal title, the Supreme Court of Canada has held that claimants must demonstrate that the right was integral to their distinctive Indigenous societies and exercised at the time of first contact with Europeans. While these may be now exercised in a modern way, practices that arose from European influences are not protected. This paradox is often expressed in relation to commercial trade in furs or fish, which the courts have seen as the product of European contact rather than integral to Aboriginal societies prior to contact. Fishing for food, community, or ceremonial purposes is, however, a protected right and may be exercised in a modern way with modern fishing equipment. …
“No Aboriginal right, even though constitutionally protected, is absolute in Canadian law. Fishing rights, for example, are not exclusive in the sense that only Indigenous peoples can exercise them and they are not immune to regulation by other governments. Aboriginal title, on the other hand, may give rise to an exclusive right to use and occupy lands, but that right may be infringed upon by the government for purposes such as economic development, power generation, or the protection of the environment or endangered species. Infringement of Aboriginal rights or title must be justified by non-Indigenous governments on the basis of a legitimate government purpose and recognition of the constitutional protection of the rights being affected. There may also be a requirement for prior consultation with the Indigenous peoples concerned and compensation in some circumstances.”
William Henderson and Gretchen Albers (2015), Self-Government – Indigenous Peoples, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/aboriginal-self-government/, accessed 1 October 2016.
William Henderson, Catherine Bell, and Gretchen Albers (2016), Rights of Indigenous Peoples, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/aboriginal-rights/, accessed 1 October 2016.
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Page created by: Ian Clark, last modified 10 February 2017.
Image: CBC, Canada removing objector status to UN Declaration on the Rights of Indigenous Peoples, 2 May 2016, at http://www.cbc.ca/news/indigenous/canada-position-un-declaration-indigenous-peoples-1.3572777, accessed 2 October 2016.