Your task is to create a note about the status of Aboriginal rights in Canada.

You can use the

resources on my website but you MUST show me your final product.
What is the status of Aboriginal rights in Canada? Legislation?
Aboriginal rights are the laws that protect the practices, land rights, hunting rights, and
their distinct culture. They are protected by s.35 of the Constitution Act, 1982 and s.25 of the
Canadian Charter of Rights and Freedoms.1 The status of Aboriginal rights in Canada has
improved over the course of Canadas history. In the modern age Aboriginals rights can be
defined as the right to independence through self-determination regarding governance, land,
resource and culture. Many Aboriginals consider the relationship between them and Canadians as
a nation to nation relationship, meaning their rights fall under international rights. The UN
charter (1945) states that participating countries, Canada included, have to foster friendly
relations among nations based on respect for the principle of equal rights and self-determination
of peoples, however the Canadian government has been hesitant to recognize the right to selfdetermination of Aboriginal peoples because of what it could mean for Canada. In response,
many Aboriginal groups have assured Canada that they will remain a part of the country however
they will govern themselves.2
Brief development of Aboriginal rights...
Aboriginal rights have existed since the Royal Proclamation of 1763, which stated that
British settlers would have to acknowledge Aboriginal rights when settling in Canada. During
negotiations of treaties with Aboriginals the British Crown promised specific rights to local First
Nations. Despite this, Aboriginal rights have been heavily infringed throughout Canadian
history.3
The earliest Aboriginal rights in Canada can be dated back to the Royal Proclamation of 1763.4
The Proclamation recognized that settlers would have to acknowledge the land rights of the First
Nations for further settlement. The Proclamation, signed by King George III, stated that all land
not won in the seven year war, would be considered Aboriginal until purchased by the Crown,
and settlers could not claim any land that had not been purchased by the Crown.5

1 "Aboriginal Rights," Indigenous and Northern Affairs Canada, 15 September 2015, accessed

30 November 2015.
2 http://indigenousfoundations.arts.ubc.ca/home/land-rights/aboriginal-rights.html
3 Ibid.
4 "History of Aboriginal Rights and the Crown." Aboriginal Rights. The University of British

Columbia. Web. 30 Nov. 2015.

5 "What is the Royal Proclamation?" Royal Proclamation, 1763. The University of British
Columbia. Web. 30 Nov. 2015.

Francisco de Vitoria made the basic concepts of Aboriginal rights. He lectured

extensively on the Aboriginals in North America. This matter lead to intense debates, with an
aftermath of the Crown of Spain and the Papacy making a series of cedulas and "papal bulls"
decrying the abuses trying to establish basic rights for the Aboriginals. This, however, was
ineffective.6
In 1969 the Canadian government introduced the White Paper, a policy paper that
introduced the idea of ending the unique legal relationship between the government and
Aboriginal peoples as well as dismantling the Indian Act. The policy was a result of a study that
found that Aboriginal peoples were the most marginalized population in Canada due to bad
policies and forced assimilation, and that they should be given resources and opportunities to
improve their lives. Though the White Paper was designed to create equality by regarding
Aboriginals as no different than other Canadian citizens, it was met with a backlash from many
Aboriginals who saw it as another attempt to assimilate them into the rest of the population. The
White Paper was rejected by multiple Aboriginal organizations, however the controversy began
an era of political organizing.7

What role did the the Royal Proclamation of 1763 play in the development of Aboriginal
Rights? Other treaties? White Paper 1969?
Established how governments could interact with Aboriginals in order to obtain their
land, and also established certain rights/freedoms/protections that belonged to them on the basis
of their status as an Aboriginal. Later policies and treaties tried to assimilate Aboriginals into
settler populations, but still aimed to generally protect their lands and their claims to said lands.8
1969 White Paper: (officially Statement of the Government of Canada on Indian Policy) created
essentially with the purpose of assimilation or equality, purpose was to eliminate any
legislation deemed discriminatory, including the Indian Act (which only applied to Indians). It
would basically remove the term Indian as a separate legal status. It was put forward by
Trudeau and Chretien. It stated that it would enable the Indian people to be freefree to
develop Indian cultures in an environment of legal, social and economic equality with other
Canadians.9
It was created because Aboriginals were worried about access to education and health
care, various rights (land and treaty). Chretien thought the White Paper could help with this.
6 Aboriginal and Treaty Rights, The Justice System and Aboriginal People, accessed 4 Dec.

2015.
7 http://indigenousfoundations.arts.ubc.ca/home/government-policy/the-white-paper-1969.html
8 Hall, Anthony J. Royal Proclamation of 1763. The Canadian Encyclopaedia. Historica

Canada, 23 Jul. 2015. Web. Dec. 4 2015.

9 The White Paper 1969. Indigenous Foundations. University of British Columbia, n.d. Web. 4
Dec. 2015.

When it was announced, Aboriginals were annoyed. All the things they complained about went
unaddressed, and it didnt mention anything about recognizing Aboriginal treaty rights or land
titles. Basically, it stripped them of what small rights they seemed to have and didnt give them
any new special rights to compensate.10
What protects Aboriginal rights in Canada? Internationally?
Section 35 of the Constitution acknowledged that Aboriginal people had rights. These
essentially include the right to use land (for fishing, hunting, practicing culture) and to establish
treaties (basically, the majority of them are based on the occupation of land). These rights have
been derived from history (older treaties and agreements, and ancestral land claims). Notable
cases leading up to Section 35 are R v. Calder and R v. Sparrow.11
Internationally, there is the UN Declaration on the Rights of Indigenous Peoples, passed
Sept. 13, 2007. It was meant to cover the bases that went unaddressed by other human rights
legislation, and (according to Article 43) was intended to cement the rights that constitute the
minimum standards for the survival, dignity, and well-being of the indigenous peoples of the
world. Other charters emphasize individual rights, while the UNDRIP aims to protect collective
rights of indigenous peoples. Canada, the US, New Zealand, and Australia all refused to sign at
first because the UNDRIP threatened to give the indigenous populations too much autonomy.12
The history of aboriginal rights in Canada dates back to 1763, where a Royal Proclamation noted
aboriginal claims to land. This resulted in development of treaties. These claims were later
deemed the responsibility of the federal government under the British North America Act of
1867.13 However, because each First Nation has historically functioned as distinct societies, it is
difficult to specifically list the protective rights of all Aboriginal peoples. In 1982 the federal
government sought to address this gap by entering Section 35 to the Constitution Act.14
Section 35 of the Constitution Act- in which Aboriginal rights are affirmed and recognized was
added to the constitution in time for it to patriated in 1982. Originally there was little reference to
Aboriginal rights in the Constitution, neither had Aboriginal Canadians been consulted about the
new constitution. The addition of Section 35 was a slow, and difficult process that included a
10 Ibid.
11 Constitution Act, 1982 Section 35. Indigenous Foundations. University of British

Columbia, n.d. Web. 4 Dec. 2015.

12 UN Declaration on the Rights of Indigenous Peoples. Indigenous Foundations. University
of British Columbia, n.d. Web. 4 Dec. 2015.
13 Timeline: Key dates for Canadas dealings with First Nations | Toronto Star. (2012, January
24). Retrieved December 4, 2015, from
http://www.thestar.com/news/canada/2012/01/24/timeline_key_dates_for_canadas_dealings_wit
h_first_nations.html
14 Hanson, E. (n.d.). Aboriginal Rights. Retrieved December 4, 2015, from
http://indigenousfoundations.arts.ubc.ca/home/land-rights/aboriginal-rights.html

lenghty amount of campaigns, and demonstrations enacted by Aboriginal organizations and

activists who advocated to have the Aboriginal title and Aboriginal rights recognized in the
Constitution. Section 35 of the constitution states: 35. (1) The existing aboriginal and treaty
rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act,
"aboriginal peoples of Canada" includes the Indian, Inuit and Mtis peoples of Canada. (3) For
greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land
claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act,
the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and
female persons.
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.15
The United Nations Human Rights Committee has a responsibility to frequently review if
states are following the obligations they have committed under the binding International
Covenant on Civil and Political Rights. Recently the committee has made numerous
recommendations as to how fundamental changes in Canadian law can be pursued in order to
respect the treatment of Aboriginal Peoples. The UN Human Rights Committee lies among other
international organizations that protect human rights, some of which being; The Elimination of
Discrimination against Women and the Inter-American Commission on Human Rights.
These groups are pushing Canada to better address the causes of violence that Indigenous women
and girls are facing, a problem that human right bodies are concerned about. The violation of
Indigenous land rights is another concern that The UN Human Rights Committee is paying close
attention to.16

How have laws in Canada since 1867 protected, or failed to protect, the human rights of
Aboriginal/FNMI groups?
Protected:
Bill C-31 was passed into law in 1985 with a goal to amend the Indian Act and to update the
Indian Act in order for it to follow what the Canadian Charter of Rights and Freedom states
about gender equality. Bill C-31 strives to address gender discrimination of the Indian Act, to
restore Indian status to those who had their status taken away due to discriminatory terms in the
past, and to allow Aboriginal bands to control their own band membership.
15 Ibid
16 Bain, D. (n.d.). UN human rights report shows that Canada is failing Indigenous peoples.

Retrieved December 4, 2015, from http://www.ubcic.bc.ca/canadafailingindigenouspeoples

 The 1951 Amendments was a revision of the Indian Act in 1951 that was inspired by the Second
World War. After the Second World War, Canadians became more conscious of the concept of
human rights, and they opened their eyes to the fact that Aboriginal People are very
disadvantaged in Canada. The amendments removed harsh sections of the Indian Act; it was no
longer illegal for Indians to practice their customs and cultures, they were allowed to freely
appear off-reserve in ceremonial dress, to organize and hire legal counsel, and Indian women
were now allowed to vote in band councils.17
On April 1, 1999, Nunavut separated from the Northwest Territories to become the newest
Canadian territory. The creation of Nunavut was the outcome of the largest aboriginal land
claims agreement between the Canadian government and the native Inuit people. The Inuit, who
make up 83% of Nunavut's 24,730 residents, will be one of the first indigenous peoples in the
Americas to achieve self-government.18
Failed to protect:
The Indian Act, enacted in 1876 (which has experienced a wide range of adjustments since)
enabled the Canadian government to govern most aspects of Aboriginal life. The Indian Act
authorizes the Canadian government to control affairs of registered Indians, and reserve
communities. This law has imposed governing structures on Aboriginal communities, and has
controlled the rights of Aboriginal peoples to practice their culture, controlled Aboriginal land,
and determined whether who qualified as Indian in the form of Indian status.19
How have environmental rights and land rights been violated? (Not by Aboriginals, but
how have their rights to the land been limited?)
The Secwepemc People: the Secwepemc territory covers a large portion of land (approximately
180,000 square kilometers) in the south-central part of British Columbia. The ancestors of
Secwepemc People have been occupying this land for nearly 10,000 years. Today the
Secwepemc territory has been destroyed by mining, forestry, tourism industries, and more.
Massive hydro dams and power generators have brought destruction upon Secwepemc fishing
and hunting ground, along with ancient burial sites. Secwepemc people have been arrested by the
RCMP for taking a stand and going against the construction of a ski resort on contested Indian
land (the development of resorts are a growing source of conflict today.)20
17 Hanson, E. (n.d.). The Indian Act. Retrieved December 4, 2015, from

http://indigenousfoundations.arts.ubc.ca/home/government-policy/the-indian-act.html
18 Hyde, S. (n.d.). We'll Have Nunavut. Retrieved December 4, 2015, from
http://www.infoplease.com/spot/nunavut1.html
19 Hanson, E. (n.d.). Constitution Act, 1982 Section 35. Retrieved December 4, 2015, from
http://indigenousfoundations.arts.ubc.ca/home/government-policy/constitution-act-1982-section35.html
20 Sewepemc. (n.d.). Retrieved December 4, 2015, from
http://www.firstnations.de/development/secwepemc.htmIndian Land. (n.d.). Retrieved December
4, 2015, from http://www.firstnations.de/indian_land.htm

 The production of the Alberta oil sands pose concerns amongst Aboriginal People. The Alberta
oil production affects First Nations in regards to the loss of traditional hunting ground and
trapping territory. The oil sands also result in habitat destruction (particularly fishing grounds)
that belong to First Nations. First Nations are also concerned about the vast environmental costs
that are affecting their country due to the mass productions. Growth projects in liquids pipelines,
natural gas liquids pipelines, renewable energy projects, and power transmission projects are
being opposed by First Nations, who fear the consequences of bitumen from the Alberta oil
sands if it were to spill into the ecosystem of the Great Bear Rainforest.21
Land Claims? Specific vs. Comprehensive Land claims?
There are two types of Aboriginal land claims, comprehensive and specific. Comprehensive
claims always involve land, but specific claims are not necessarily land-related. Comprehensive
claims deal with land that has not yet been delegated through treaties or through other legal
means. handle treaty-making in Canada that has not yet been resolved in regards to Aboriginal
land rights (these land rights have not yet been handled through past treaties.) Comprehensive
land claims focus on negotiating modern treaties between the Aboriginal group, the
province/territory and Canada itself.22
Specific claims deal with past grievances and troubles Aboriginals may have had in the
past. To honor treaty obligations Canadas federal or provincial government aids in the settling of
Aboriginal people. Canada first established policies on Aboriginal claims in 1973, and created
processes to negotiate land with Aboriginals.23 Specific claims deal with the unjust and ill
treatment that has been imposed on First Nations in the past in relation to Canadas obligations
beneath historic treaties or in accordance with the way Canada managed First Nations assets and
funds. Negotiating settlements with First Nations are enacted to resolve problems between
Canada and First Nations with a goal to bring closure and agreement for all Canadians.24

21 Best, J., & Hoberg, G. (2008-06-18). Alberta's Oil Sands: Key Issues and Impacts |

Mapleleafweb.com. Retrieved November 19, 2015, from

http://mapleleafweb.com/features/alberta-s-oil-sands-key-issues-and-impactsPipeline
Transportation. (2015-08-25). Retrieved November 25, 2015, from http://wwwapps.tc.gc.ca/safsec-sur/3/erg-gmu/erg/pipelines.aspx
22 Land Claims. (n.d.). Retrieved December 4, 2015, from https://www.aadnc-

aandc.gc.ca/eng/1100100030285/1100100030289
23 https://www.aadnc-aandc.gc.ca/eng/1100100030285/1100100030289
24 Land Claims. (n.d.). Retrieved December 4, 2015, from https://www.aadncaandc.gc.ca/eng/1100100030285/1100100030289

 Evaluate the status of rights in Canada - is there progress towards FNMI rights?
FNMI: First Nations, Metis and Inuit
Progress towards the rights of First Nations, Metis and Inuit persons in Canada are currently in
the process of increasing and including the educational rights of FNMI by working to provide
quality programs to help create more learning opportunities for FNMI people, including FNMI
history into their learning curriculum and developing strategies to help get students and parents
involved with the academic success of FNMI youth.25

R v. Marshall 1993? R v. Drybones? R v. Sparrow?

R v. Marshall 1993
Donald Marshall (Membertou FN) did not have a proper fishing or selling license when he was
stopped and inspected on a fishing trip in Antigonish, Nova Scotia. His fishing equipment was
seized and he was charged with selling $787 worth of eels, fishing without a license and fishing
during a closed season. Marshall argued that what he was doign was not illegal since First
Nations have been doing this since early 16th century. SCC found that Marshall had a treaty right
to fish, catch and sell fish (Peace and Friendship Treaties)26
Implications: Aboriginal rights (in this case, derived from treaties), like rights for nonAboriginals, trump other laws.
R v. Drybones
Indian Act had made it illegal for Aboriginals to be intoxicated while not on reserve land (???).
SCC concluded that Drybones had been drunk off reserve land at a Yellowknife hotel and was
punished because of his race, and the law was changed.27
Implications: discrimination is not allowed; in this case, the Bill of Rights superseded the
discriminatory and overly-harsh (in the eyes of the court) section of the Indian Act (s. 94).
Punishment cannot be applied discriminatorily, but Aboriginals can gain rights from treaties that
might seem discriminatory based on legal procedure
R v. Sparrow
Sparrow was fishing with a net that was larger than was allowed under the 1985 Fisheries Act.
When he was arrested for it, he argued that his prosecution violated s. 35(1) of the Constitution
Act that said it would uphold all existing Aboriginal rights, including the right to fish. It was
found that he was allowed to fish like that under s. 35 as an inherent Aboriginal right.
25 https://www.edu.gov.on.ca/eng/aboriginal/fnmiFramework.pdf
26 https://www.aadnc-aandc.gc.ca/eng/1100100028614/1100100028615
27 http://www.thecanadianencyclopedia.ca/en/article/drybones-case-1970/

Implications: Aboriginal rights can be infringed upon given sufficient reason. The Sparrow test
was later used to determine whether the government was allowed to infringe on Aboriginal
rights, and if so, to what extent government legislation could limit or override Aboriginal rights.
Influences from the international community?
Aboriginals understand their nation-to-nation relationship with the Crown, therefore
understand their rights in the international domain. Throughout periods of European colonization
and settlement, Aboriginal leaders and delegations have taken their concerns to international
forums such as the United Nations (UN)28. They did this to argue that the British Crowns
creation laws and regulations onto the Aboriginal laws were violating their rights. They were
able to gain the UNs support due to Canadas bind to the UN Charter to foster friendly relations
among nations based on respect for the principle of equal rights and self-determination of
peoples.
Remember, sometimes the answer to your question is more questions - leave no rock unturned
ABORIGINAL RIGHTS - rights that some Aboriginal people of Canada hold as a result of
their ancestors longstanding use of the land. Aboriginal rights vary from group to group,
depending on the customs, practices, and traditions that have formed part of these distinct
cultures
Collective Rights - rights acquired as a result of membership in a group - all members of the
group share the same rights - Aboriginal peoples argue that their collective rights are derived
from their occupation of that land for thousands of years

28 "Aboriginal Rights." Aboriginal Rights. Accessed December 4, 2015.

http://indigenousfoundations.arts.ubc.ca/home/land-rights/aboriginal-rights.html.