Aboriginal Rights

Aboriginal rights arise not from a treaty but from the fact of a people’s relationship with the land; aboriginal peoples were once independent, self governing entities in possession of most of the lands now making up Canada. Aboriginal rights run the gamut from rights to site specific activities such as fishing to land title over a large area and its natural resources. Site specific rights to activities can be proved even where title cannot be. Courts first recognized aboriginal rights in a 1973 case (footnote #12)  causing the Government of Canada to begin negotiation of modern day treaties known as land claim agreements in regions where no treaties existed. Land claim agreements ensure that aboriginal people have a role in managing the resources of the region covered by the agreement.

While an aboriginal right such as the right to fish cannot be extinguished today except by constitutional amendment, prior to 1982, the right could have been extinguished by federal legislation through clear and plain language. The Supreme Court in a landmark decision involving Mr. Sparrow’s aboriginal right to fish for salmon in the Fraser River "where his ancestors had fished from time immemorial" held that the Fisheries Act did not contain clear language to extinguish aboriginal rights to fish.(footnote #13)  Since the Sparrow decision, governments can only regulate fishing and other resource-based rights of aboriginal people so long as the interference is justified, and in keeping with its trust relationship with aboriginal people. According to the Supreme Court, the conservation of a limited resource is a justified objective for infringing an aboriginal right.(footnote #14)