Aboriginal Law: Justice, Rights, and State Interests in Canada

This essay delves into the intricacies of Aboriginal law in Canada, examining the pursuit of justice for Indigenous peoples in the face of historical dispossession and marginalization. It explores the evolution of modern aboriginal law, considering both statutory and case law, and analyzes how these legal frameworks attempt to offer redress for past injustices. The paper highlights the complexities of defining aboriginal rights within a diverse Indigenous population, including First Nations, Metis, and Inuit communities, and discusses the challenges in balancing these rights with the interests of the Canadian state. It explores how the legal system, through the Constitution Act of 1982, federal laws, and landmark Supreme Court cases, has shaped the recognition and protection of aboriginal rights related to land, resources, and self-governance. Furthermore, the essay discusses the limitations of these legal measures and how they may be geared toward reducing the state's liability and managing risk, ultimately questioning whether these steps have effectively addressed the problems faced by aboriginal peoples. The paper also examines the impact of international law, the Royal Proclamation of 1763, and the application of common law in the courts of Canada, concluding that while progress has been made, not all legal issues have been fully resolved.

Running head: LAW, JUSTICE & INDIGENOUS
Law, Justice & Indigenous
Name of the Student
Name of the University
Authors Note

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Introduction
Indigenous or Aboriginal groups, individuals and countries include those who have a
historical steadiness with pre-invasion and pre-colonial civilizations that advanced on their areas,
contemplate themselves different from other divisions of the civilizations presently prevailing in
those areas or parts of them. In Canada, the expression Indigenous or aboriginal people include
First Nations, Metis and Inuit individuals. Presently, these individuals are the original residents
of the land of Canada (Kuokkanen, 2015). This paper mainly focuses on the discussion of the
rights of the aboriginal people of Canada. Modern laws related to aboriginal people provide
some justice to them, which was not provided to them before due to dispossession and
marginalization. While discussing the same, this paper also sheds light on the discussion of
whether the problems faced by the aboriginal people have been reduced after taking those steps
or not.
Discussion
In Canada, a diversity exists among the aboriginal group of individuals, such as First
Nations, Metis and Inuit and for this reason it is very problematic to simplify the definitions
related to the rights of aboriginals. This particular problem has been observed by numerous
scholars. For instance, as some treaties have been signed between the First Nations and the
federal government, therefore several definite rights and facilities relating to annual cash
disbursement have been enjoyed by the First Nations which other non-treaty nations cannot
enjoy. In this way, the court cases related to land claims won by the aboriginal countries might
apply more control over lands related to them and population than others. Thus, the rights of all

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aboriginal people may include entry to inherited resources and properties and the right of self-
governance (Asch, 2011).
It has been observed that certain rights related to land and resources are enshrined in the
treaties. Apart from that, rights of the aboriginal people are also protected by federal law, such as
the Constitution Act of Canada, 1982. The living rights of the people of First Nations were
protected by the Human Rights Act of Canada since 2008. Not only is that, but there are also
several Supreme Court cases available through which the aboriginal title or rights in relation to
customary areas have been explained. In 1997, it was observed in the Delgamuukw case that an
inherited right had been constituted by Aboriginal title which also had been protected by the
Constitution (Kulchyski, 2013).
The aboriginal rights are not enumerated in another federal law; namely, the Indian Act
and this Act has been recognized as historically oppressive by many scholars. However, this Act
also has a great impact on the rights of the aboriginal people. Some lawful categories, such as
Status and Non-Status Indians, creates division among the aboriginal people, and the Indian Act
is responsible for that. For instance, Status Indians enjoyed the right of not paying federal or
regional taxes on specific goods, but the same right is unavailable to the Non-Status Indians.
Nevertheless, aboriginal people representing both of these categories rejected to be demarcated
by this particular Act (Wilson & Macdonald, 2010). Several regional and local laws challenged
aboriginal rights. Numerous land claim contracts have been made and signed between First
Nations and federal and regional governments. As the aboriginal rights were challenged,
therefore the relations among the aboriginal communities became less harmonious. The claims
of aboriginal people in relation to the inherited lands had been ignored by local and regional

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authorities in the Oka crisis and Ipperwash crisis. Basically, aboriginal people had started to
protect their rights, lands, resources and ways of lives after the arrival of the Europeans.
In order to establish their rights, the aboriginal people conventionally focus to three
principal points of view, such as International law, Common law as described in the Courts of
Canada and the Royal Proclamation of 1763. On the international stage, the group of aboriginal
individuals have joined in the working groups of the United Nations because those groups
worked with aboriginal community and minority rights. It has been observed that UN
Declarations related to the rights of aboriginal people had been adopted by numerous countries in
2007. However, initially, Canada denied signing that declaration because issues related to land
disputes have a great negative impact on financial development. Nonetheless, after a change in
the Canadian federal government, Canada signed it in 2016 (Blackburn, 2009).
On the nationwide stage, the Royal Proclamation, 1763 was recognized as the
constitutional basis of aboriginal treaties and lawful rights. As mentioned by section 35 of the
Constitution Act, 1982, the legitimate rules of the Royal Proclamation are applicable in the
treaties of the present day.
On the other hand, a new era of legal and radical view on Aboriginal Rights has been
started by the incorporation of section 35 into the Constitution. A spectrum of different
aboriginal and treaty rights are covered by this section, which includes lawful acknowledgement
of habitual practices, such as wedding, adoption and other rights excluding land entitlements and
entitlements of customary land possession (Power, 2008).
The aboriginal rights have been proved by the aboriginal people in the courts of Canada.
The Supreme Court ruled that, for property rights other than the Aboriginal title, aboriginal

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people would show that the right was related to their unique cultures and was implemented prior
to the contact with Europeans. This rule was observed in Van der Peet Case and Pamajewon
Case. It means that traditions, such as fishing and hunting to be preserved as privileges,
aboriginal individuals must show that these actions were carried out prior to the entrance of
Europeans. Section 35 of the Constitution Act was used by the aboriginal people in order to
uphold their rights related to resource activities, such as fisheries. In the Sparrow case, section 35
of the said Act was interpreted by the Supreme Court, which stated that the aboriginal rights
must be interpreted properly (Isaac, 1993).
There were a couple of important court cases that helped in defining the Aboriginal title.
For the first time, the Calder case (1973) acknowledged that Indigenous title occupies an
important place in Canadian law. In the Delgamuukw case (1997), the Supreme Court stated that
at the time the Crown claimed jurisdiction over that area, claims to traditional lands had to prove
exclusive possession of the territory by an established Aboriginal community. The Tsilhqot'in
case (2014) further explained Indigenous title setting criteria. Aboriginal rights are not absolute
under Canadian law. For instance, fishing rights are not special in the sense that they can be
exercised only by Aboriginal peoples.
Conclusion
Therefore, for the above discussion, it can be concluded that not all legal issues
pertaining to Indigenous title were fully resolved by the Court. Serious conflicts emerged over
whether or not Indigenous title has the sole right to use and reside in lands. The courts, and more
precisely, the Canadian Supreme Court, have explained and assured rights to land and property
operations and other matters. As governments were unable to reach agreement on Aboriginal
Rights throughout constitutional bargains, therefore it was left to the courts (Blackburn, 2007).

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The decisions are part of Canadian law and may change the government’s view of Aboriginal
Rights. However, the Calder case helped numerous First Nations in British Columbia to initiate
their personal land claims and Indigenous title cases.

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References
Asch, M. (Ed.). (2011). Aboriginal and treaty rights in Canada. UBC Press.
Blackburn, C. (2007). Producing legitimacy: reconciliation and the negotiation of aboriginal
rights in Canada. Journal of the royal anthropological institute, 13(3), 621-638.
Blackburn, C. (2009). Differentiating indigenous citizenship: Seeking multiplicity in rights,
identity, and sovereignty in Canada. American Ethnologist, 36(1), 66-78.
Isaac, T. (1993). Balancing rights: The Supreme Court of Canada, R. v. Sparrow, and the future
of Aboriginal rights. Canadian Journal of Native Studies, 13(2), 199-219.
Kulchyski, P. (2013). Aboriginal rights are not human rights. defence of indigenous struggles.
Winnipeg, Manitoba, Canada: ARP Books.
Kuokkanen, R. (2015). Gendered Violence and Politics in Indigenous Communities: The Cases
of Aboriginal People in Canada and the Sami in Scandinavia. International Feminist
Journal of Politics, 17(2), 271-288.
Power, E. M. (2008). Conceptualizing food security for Aboriginal people in Canada. Canadian
Journal of Public Health, 99(2), 95-97.
Wilson, D., & Macdonald, D. (2010). The income gap between Aboriginal peoples and the rest
of Canada. Ottawa: Canadian Centre for Policy Alternatives.