Hanson (2009) states that Aboriginal rights are a collective set of inherent rights that Aboriginal people have practiced since before European colonization began. While these specific rights may vary depending on the Aboriginal group, they generally include rights to land, rights to survival resources, rights to self-determination and self-government, as well as the right to practice one’s own culture. The latter right includes language and religion (Hanson, 2009). These rights originate from Aboriginal groups’ occupation of their home territories, as well as ongoing political, legal, and social structures. These rights are not granted from an external source. As a result, Aboriginal rights are considered separate from the rights that are given to non-Aboriginal Canadian citizens through Canadian common law (Hanson, 2009).
Aboriginal groups and the Canadian government often hold differing views on this subject, making it difficult to concretely list Aboriginal rights. For example, some rights that have been recognized and practiced by Aboriginal peoples have not been formally recognized by the Canadian government. In 1982, the government took steps to protect Aboriginal rights by highlighting them in Section 35 of the Canadian constitution (Hanson, 2009). Hanson (2009) states that the rights were further protected in Section 25 of the Charter of Rights in Freedoms, ensuring that Charter rights cannot nullify Aboriginal rights. However, while the Canadian government recognizes that Aboriginal rights exist, their inability to specifically qualify what constitutes these rights continues to be an issue.
Slattery (1987) outlines the differences between generic and specific rights of Aboriginal peoples. He states that generic rights are held by Aboriginal peoples all across Canada. They include the rights previously stated as well as the right to enter into treaties. Specific rights, on the other hand, are rights that are held by a particular Aboriginal group. These rights may have been established as part of a treaty or as the result of a legal case.
During the settlement and colonization of Canada in the 18th century, treaties between the government and local Aboriginal groups were negotiated based on the Royal Proclamation of 1763 (Asch, 1984). This proclamation stated that British colonists were required to address existing Aboriginal rights in order to settle. Asch (1984) states that when negotiating these treaties, the government guaranteed certain rights to Aboriginal groups. There has been much debate, however, regarding whether the rights provided through these treaties negated the inherent rights of Aboriginal peoples.
As Canada prepared to create a Charter of Rights and Freedoms in the early 1980s, Aboriginal leaders and groups petitioned for the inclusion of Aboriginal rights, with the hope that this would lead to better protection of the rights (Hanson, 2009). After much debate, Aboriginal rights were included in the Canadian constitution in 1982. The government stipulated, however, that these rights would be specifically defined through the court system on a case by case basis (Hanson, 2009).
Not all Aboriginal leaders are pleased with the developments that constitutional inclusion has brought about. Hanson (2009) states that some Aboriginal peoples are opposed to the government’s means of defining Aboriginal rights. Leaders claim that Section 35 distracts Aboriginal peoples from setting a more meaningful definition of Aboriginal rights. They instead prefer to focus on preserving their nation to nation relationship with Canada. Aboriginal leaders frown upon using the court system to legitimize their existence.
In conclusion, while the Canadian government has made attempts to preserve the rights of Aboriginal peoples, it is clear that more work must be done in order to handle the rights of these groups with integrity.