Rights set in Constitution, defined by judges
Charter recognition of Aboriginal Peoples 'sent a very important message'
The year 1982 was a milestone for Canada's aboriginal groups, who had been trying to have their rights recognized for decades.
It was the year the Trudeau government enacted the Constitution Act and The Charter of Rights and Freedoms, without Quebec's consent.
The new Constitution and Charter each contain clauses protecting the rights of Aboriginal Peoples (Indian, Métis and Inuit) holding aboriginal and treaty rights.
"The recognition of aboriginals as peoples directly referred to international law and the right to self-determination. It sent a very important message," notes Renée Dupuis, a lawyer specialized in aboriginal law and former chief commissioner of the Indian Specific Claims Commission.
The way had already been paved by the Supreme Court in 1973. In the Calder case, involving the Nisga'a of British Columbia, the court recognized that a First Nation could have rights to land it had occupied since time immemorial.
The text of the 1982 Constitution does not specify the nature of aboriginal rights. Several constitutional conferences have subsequently attempted (in vain) to define them more precisely.
It is the courts that are gradually, albeit unwillingly, defining these rights through rulings.
"Since 1982, the Supreme Court has consistently signalled to politicians that these issues should not be settled by the courts; they should be negotiated," explains Renée Dupuis.
Two types of rights
The courts have defined two types of aboriginal land rights: ancestral rights and aboriginal title. These are communal rights that belong to groups, not individuals.
The ancestral rights of a native group are tied to the traditions and practices of its specific culture, and include the hunting, fishing and gathering of certain species. The right to self-government — to form political structures with decision-making powers in matters related to a given territory — is also an ancestral right.
Aboriginal title is a property right in the land. It stems from long-standing use and occupancy of the land at the time the British Crown took possession of it.
Recent treaties signed by aboriginal groups specify these rights on a case-by-case basis. In general, the treaties define aboriginal title in a portion of the land and stipulate the right to carry out certain activities over a more extended area. Some treaties also specify the terms of self-government. (See the interactive map for more details.)