As a rule, Aboriginal Rights are the rights of Indigenous people to carry on with their traditional and ancestral customs of hunting, fishing, trapping, feasting and holding religious ceremonies. They stem in part from Indigenous occupation of lands prior to European contact and assertions of sovereignty.
Aboriginal rights also flow from the many treaties that Indigenous leaders signed with the Crown over the last few centuries, which are matters of contract law—sacred contract law. Through these treaties the Crown acquired a great deal of land from Indigenous signatories, who received remuneration and rights. Insofar as Indigenous signatories entered into these contracts voluntarily and in an enlightened manner, the Crown lawfully acquired the land on which most Canadian homes are built. Aboriginal land claims arise in BC primarily because provincial lawyers cannot produce the land transfer deeds needed to prove that the Crown lawfully acquired land on which it has built cities and townships over the last two centuries.
Aboriginal rights flow from the Rule of Law, a notion to which the Canadian constitution ascribes, and they should require no justification to anyone. Federal and provincial governments must justify their intrusions into the customary ways of Indigenous people, simply because one society may not lawfully intrude upon the peaceful affairs of another society, including First Nations societies, without justification. This Rule of Law was not respected during the Age of Empire and much earlier, but since the late twentieth century the Canadian legal system has purported to take it seriously.
In 1982 Canada’s constitution affirmed and recognized existing Aboriginal rights. In theory, therefore, Aboriginal rights are entirely reconcilable with Canadian law because they are a constituent part of a legal system that should be internally reconcilable. However, one sense in which Aboriginal rights can be said to be irreconcilable with Canadian law is that, from the perspective of Indigenous peoples, a foreign political-legal entity (such as Parliament) has never had a legal right to govern any aspect of their lives without their consent.
When legal recognition of certain Aboriginal rights seems irreconcilable with Canadian law from the perspective of non-Indigenous Canadians, as it does from time to time, the source of the ‘problem’ is usually that past governments built their non-Indigenous constituents’ lives on insecure legal foundations vis-à-vis the rights of Indigenous peoples. Courts are expected to right these past legal wrongs. Recently an Ontario court held the Crown accountable for treaty-based annuities it had not paid the Anishinaabe since 1876.
This century courts will continue to resolve Aboriginal Rights claims in ways that will not satisfy all Indigenous and non-Indigenous peoples in Canada, such is the very nature of adjudicating conflict. But this fact does not make Aboriginal Rights and Canadian law irreconcilable. Rather, the legal hope and expectation of Indigenous and non-Indigenous people in Canada is to diminish conflict lawfully and peaceably, so that everyone can eventually live contentedly side-by-side, each society’s system of self-governance paying equal and practical respect to the other’s system. Such an ideal is reflected in the concept of Treaty Federalism.
Speaker: Dr. Christopher Nowlin
Dr. Nowlin was born in Lethbridge. He received his M.A. in Philosophy from Brock University in 1987 and his Ph.D in criminology from Simon Fraser University (SFU) in 1998. He has taught Canadian law and Aboriginal law at SFU. Presently he teaches Canadian law and Canadian Aboriginal law at Langara College in Vancouver.
Dr. Nowlin has represented clients at all levels of court in BC, in Alberta, as well as at the Supreme Court of Canada. He has extensive experience representing Indigenous accused persons charged with various offences, ranging from fishing violations to murder. He has established an important precedent involving Indigenous customary law and religion in R. v. Manuel (BC Court of Appeal).
Moderator: Klaus Jericho