Tuesday, April 24, 2018

Aboriginal Rights

Aboriginal rights are collective rights which flow from Aboriginal peoples’ continued use and occupation of certain areas. They are inherent rights which Aboriginal peoples have practiced and enjoyed since before European contact. Because each First Nation has historically functioned as a distinct society, there is no one official overarching Indigenous definition of what these rights are. Although these specific rights may vary between Aboriginal groups, in general they include rights to the land, rights to subsistence resources and activities, the right to self-determination and self-government, and the right to practice one’s own culture and customs including language and religion. Aboriginal rights have not been granted from external sources but are a result of Aboriginal peoples’ own occupation of their home territories as well as their ongoing social structures and political and legal systems. As such, Aboriginal rights are separate from rights afforded to non-Aboriginal Canadian citizens under Canadian common law.
It is difficult to specifically list these rights, as Aboriginal peoples and the Canadian government may hold differing views. Some rights that Aboriginal peoples have practiced and recognized for themselves have not been recognized by the Crown. In a move towards addressing this gap, in 1982 the federal government enshrined Aboriginal rights in Section 35 of the Canadian Constitution, and in Section 25 of the Charter of Rights in Freedoms, the government further ensured that Charter rights cannot “abrogate or derogate” from Aboriginal rights.  Yet the ensuing First Ministers’ Conferences could not reach a consensus on what specifically qualifies as an Aboriginal right, and the federal government has since recognized that, while Aboriginal rights exist, what these specific rights are will have to be determined over time through the court system.

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