Our Inherent Rights
Prior to the arrival of Europeans in North America, Indigenous peoples were organized as sovereign nations. We had our own cultures, economies, governments and laws. We were generally in exclusive occupation of defined territories, over which we exercised governmental authority (jurisdiction). We also owned the lands and resources within our territories, and so had property rights, subject to responsibilities placed on us by the Creator to care for the land and share it with the plants and animals who also lived there.
RIGHTS TRAMPLED BUT NEVER EXTINGUISHED
For thousands of years, we organized ourselves as sovereign nations, with what was essentially governmental jurisdiction over our lands, including property rights. Those rights — of governance and property — were trampled in the stampede of European settlement, colonization and commercial interests. But they were never lost or extinguished.
RIGHTS RECOGNIZED IN CANADIAN LAW
The inherent right of self-government that we have today in Canadian law comes from the sovereignty we exercised prior to contact with Europeans. It is inherent because it existed before European colonization and the imposition of Euro-Canadian law. Aboriginal rights to lands and natural resources are also inherent because they pre-date European colonization. They are communal rights that come from occupation and use of the land by Indigenous peoples as sovereign nations.
OUR INERENT RIGHT OF SELF-GOVERNMENT
Our people have an inherent right to govern ourselves and decision-making authority over our title lands. We are free to create our own form of governance to preserve our culture, foster healthy families, build vibrant communities, develop our economies and restore our nations.
ABORIGINAL TITLE TO OUR LANDS
Aboriginal title is a constitutionally protected right to the land itself. It amounts to the entire beneficial interest in our lands, including surface rights to resources such as standing timber and subsurface rights to minerals and oil and gas. Aboriginal title is a generic interest – it does not vary from one Indigenous people to another. It is unique and unlike other common law and civil law land rights. Aboriginal title cannot be taken away other than by surrender to the Crown. The land cannot be used in ways that would substantially reduce its value for future generations. Aboriginal title can be established by proving exclusive occupation of the claimed land at the time of Crown assertion of sovereignty.
Our people possess both an inherent and legal right to fully benefit from our title and treaty lands. Treaties have to be interpreted liberally and generously and ambiguities must be resolved in favour of the Indigenous parties. Treaties are solemn agreements that engage the honour of the Crown. Treaty making, interpretation and implementation all involve the integrity of the Crown and sharp dealing will not be tolerated. Historical and bilateral cultural contexts need to be taken into account to determine the common intention of the parties.
Throughout our long history on our lands and among our people, we had laws that determined our use of the land and defined our relationships with neighbouring nations. Our laws were founded on our principles and values. This jurisdiction and authority must be exercised according to the vision, priorities and mandate that comes from the citizens of our nations. Our legal traditions are among Canada’s legal traditions. They form part of the law of the land. Indigenous legal principles and perspectives must be taken into account with the objective of mutually enriching and harmonizing Canadian and Indigenous legal orders.
Explore the unbroken history of First Nations right to self-governance, a right rooted in our occupation and our own jurisdiction over the land before contact. In recent years aboriginal and treaty rights and title have been addressed by Canadian courts and, for many First Nation citizens, the movement for self-governance is a way to reaffirm authority in relation to the land.
THE DUTY TO CONSULT
Where Aboriginal rights and/or title are claimed but have not yet been acknowledged by a court decision or land claims agreement, the Crown owes a duty to consult while planning and before undertaking any project or activity that could have a negative impact on our claimed rights. In appropriate circumstances, the Crown must accommodate our claimed rights before proceeding. The depth of the duty depends on the strength of the claim and the extent of the negative impact. However, the consultation requirement does not give a veto over resource development on our lands. The Crown also has a duty to consult when taking up treaty lands. Although the Crown has the authority to take up treaty lands for development, it first must consult with the First Nation whose treaty hunting and trapping rights would be impacted. The duty to consult also applies in the context of modern land claims agreements.
INFRINGEMENT OF ABORIGINAL AND TREATY RIGHTS
Since Aboriginal and treaty rights received constitutional protection in 1982, they can no longer be extinguished without consent, even by Parliament. However, they can still be legislatively infringed, as long as the infringement can be justified by a test the Court laid down. The test requires that the federal government prove, first, a valid legislative objective for the infringement, such as conservation, and second, that the honour of the Crown and the trust relationship with our people has been respected. To meet the second requirement, the government must prove that the right is being infringed as little as possible to meet the legislative objective, that the Indigenous Peoples affected have been consulted, and that fair compensation is available.
The Crown has assumed control of many of our interests and owes fiduciary obligations to First Nations people . This fiduciary relationship requires that the Crown act honestly, in good faith, and strictly in the best interests of our people.
THE HONOUR OF THE CROWN AND RECONCILIATION
The honour of the Crown is involved in all its dealings with our peoples and is linked to the need for reconciliation. Reconciliation has to take into account and give equal weight to both the Indigenous and the common law perspectives. For reconciliation to be achieved, the Crown has to act honourably and consult with our peoples and accommodate our interests when it plans actions that might have a negative impact on our claimed rights. Reconciliation is not a final remedy; instead, it is a process that flows from the Crown’s duty of honourable dealing toward our people, which arises in turn from the Crown’s assertion of sovereignty and de facto control of land and resources that were formerly in our control.
THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES
The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly on September 13, 2007. In 2021, Canada’s Parliament enacted legislation in which it undertook to make Canadian law consistent with the Declaration: United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c. 14. The province of British Columbia has enacted similar legislation: Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c. 44.
The Declaration’s 46 Articles outline what the United Nations regards as “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world” (Art. 43). The Preamble affirms “that indigenous peoples are equal to all other peoples” and recognizes “the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties.” A key right acknowledged in the Declaration is the right to self-determination, by virtue of which Indigenous Peoples “freely determine their political status and freely pursue their economic, social and cultural development” (Art. 3).
Several of the provisions require “free, prior and informed consent” before governments take action affecting Indigenous Peoples and their rights (e.g., Art. 10 and 29(2)). Art. 32(2) provides that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” Where lands, territories and resources that Indigenous Peoples traditionally owned, occupied or used have been taken, used or damaged “without their free, prior and informed consent,” they have “the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation” (Art. 28(1)).
There are many unresolved questions about the extent to which Canadian law is consistent with the Declaration. For example, is the scope of the Canadian duty to consult, which does not provide Indigenous Peoples with a veto over resource development on their lands, consistent with the requirement of free, prior and informed consent? Is justifiable infringement of Aboriginal and treaty rights consistent with the Declaration’s acknowledgement of these kinds of rights?
The Declaration is not a legal document that can be enforced directly in Canadian courts. Nonetheless, judges have begun to take account of the Declaration’s provisions and use them to support decisions involving the rights and governance authority of our people.
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