Aboriginal rights

The nature of Aboriginal rights

The common law doctrine of Aboriginal rights recognizes that when Europeans arrived in North America, Indigenous peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries (Van der Peet, SCC).

Aboriginal rights under section 35 exist along a spectrum with respect to their degree of connection to the land. At the one end are those Aboriginal rights which are practices, customs and traditions integral to the distinctive Indigenous culture of the group claiming the right but where the use and occupation of the land where the activity is taking place is not sufficient to support a claim of Aboriginal title to the land. In the middle are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land. Although an Indigenous group may not be able to demonstrate Aboriginal title to the land in question, it may nevertheless have a site-specific right to engage in a particular activity. At the other end of the spectrum is Aboriginal title, a right to the land itself (Delgamuukw,SCC). It is important to recognize that Aboriginal rights (whether site-specific or non-site-specific) can be made out even if Aboriginal title cannot be made out.  Since Aboriginal rights can vary with respect to their degree of connection with the land, some Indigenous groups may be unable to make out a claim to Aboriginal title but may still be able to show that they possess Aboriginal rights recognized and affirmed by s. 35(1).

For an activity to be protected as an Aboriginal right it must be “an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right” (Van der Peet, SCC). The nature of the right is not frozen in time. It can evolve in light of present-day circumstances (R v Sappier; R v Gray, 2006 SCC 54). The Indigenous perspective is also key to assessing whether activities may constitute Aboriginal rights under section 35.

To be considered integral, the practice, custom or tradition must be of “central significance” to the Indigenous society in question or, in other words, “made the culture what it is” (Van der Peet, SCC). A practice undertaken for survival purposes can meet the “integral to a distinctive culture” part of the test (Sappier, SCC). The analysis requires more than a demonstration that the practice took place or was an aspect of the historical Indigenous society. Although the influence of European culture is generally not relevant to determining whether an Aboriginal right exists, activities that become central or significant because of the influence of European culture cannot be said to be Aboriginal rights. A litmus test for “significance” is whether, without the action in question, the culture in question would be fundamentally altered or different. For example, “sporadic”, “low volume”, or “opportunistic” practices will not be sufficient to ground a claim of Aboriginal rights (Lax Kw’alaams Indian Band v AGC, 2011 SCC 56). In addition, the practice should not be so general in that it is common to every human society (Van der Peet, SCC). Incidental rights to a distinct practice, custom or tradition must be independently integral to the culture of the Indigenous society.

In assessing continuity of the practice in question, courts will look at the claimed modern right to determine if it is “demonstrably connected to, and reasonably regarded as a continuation of” the pre-contact integral practice (Lax Kw’alaams, SCC; Desautel, SCC). Existing Aboriginal rights will be interpreted flexibly to permit their evolution over time with respect to both subject matter and method of exercise.

Indigenous peoples located outside of Canada, who may be able to satisfy the threshold question that they are “aboriginal peoples of Canada”, will need to satisfy the same criteria as set out in Van der Peet in order to demonstrate that they hold section 35 Aboriginal rights in Canada (Desautel, SCC).

The relevant time of the existence of the pre-contact practice, custom or tradition is the period prior to contact between the Indigenous group and European societies; therefore, the exact time period will vary across the country (Van der Peet, SCC). This framework has been modified in relation to the Aboriginal rights of Métis.

Individuals self-identifying as Métis who assert section 35 protected Aboriginal rights must demonstrate that they are a member of a Métis community, have an ancestral connection to a historic Métis community, and are accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed. In addition, the right claimed must be an activity that is an element of a practice, custom or tradition integral to the distinctive culture of a historic Métis collective prior to effective European control (Powley, (SCC)). When assessing Métis rights, the relevant time is the period “prior to effective European control”.

The Supreme Court of Canada has assumed without deciding that self-government may constitute an Aboriginal right recognized and affirmed by section 35, provided that the criteria for the existence of such rights can be met (R v Pamajewon, [1996] 2 SCR 821).

The Government of Canada has affirmed that self-government, including jurisdiction over child and family services, is an inherent right recognized and affirmed by section 35 in the CFS Act. The Supreme Court found it unnecessary to rule on the correctness of this affirmation in upholding the constitutionality of the CFS Act, instead leaving it for courts to decide on the basis of evidence in future cases (Reference, SCC). Although the Supreme Court has not yet recognized self-government as an Aboriginal right protected under section 35, it noted that an inherent right to Indigenous self-government has now been affirmed on the international plane by Article 4 of the UN Declaration (Dickson, SCC).

Additionally, courts have recognized a wide-range of Aboriginal practice-related rights for particular Indigenous groups including:

Lastly, a private company operating in the natural resource sphere can be held responsible under the tort of nuisance for interfering with Aboriginal rights, title and interests (Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2024 BCCA 62).This is due to the unique nature of Aboriginal rights, their significance to reconciliation and the provision of cultural security and continuity, as well as their intimate connection to a particular piece of land (Saik’uz).  Whether a particular Aboriginal right will support a nuisance claim is a contextual analysis that depends on the facts in a given case.  Further, private and other third parties may invoke the defence of statutory authority when the interference results from an activity that was approved by a governmental regulatory authority and the activity complies with the authorization provided. When either level of government authorizes an activity that causes interferences with Aboriginal rights, title and interests, a claim for damages is possible against that respective government. Declaratory relief is also available to set out the Crown’s duties on a going forward basis once an Aboriginal right is established, and such declaratory relief should not be unduly narrow or general (Saik’uz, 2024).

Aboriginal title

Aboriginal title is a subset of Aboriginal rights and represents a right to the land itself (see R v Adams, [1996] 3 SCR 101, Delgamuukw, SCC).  According to the Supreme Court of Canada, Aboriginal title is a right to land that is similar to property defined at common law as fee simple title and “pleine propriété” in civil law in that it confers the right to decide how land will be used; the right to enjoyment and occupancy; the right to possess the land; the right to economic benefits from the land; and the right to proactively use and manage the land. It differs from fee simple title in that it is a collective right belonging to the Indigenous group; Aboriginal title lands are alienable only to the Crown; and cannot be used in a manner which prevents future generations from use and benefit of the land (Tsilhqot’in Nation v British Columbia, 2014 SCC 44).

The Crown is under a legal duty to negotiate in good faith to resolve land claims (Tsilhqot’in Nation, SCC).  The Supreme Court of Canada has repeatedly emphasized that negotiation is the preferred way to reconcile rights and title relative to adversarial litigation (Tsilhqot’in Nation, SCC, Haida, SCC).

Neither federal nor provincial governments can take measures that adversely impact Aboriginal title lands without consent of the title holder, unless such measures can be justified according to the test set out in Sparrow described below (Tsilhqot’in Nation, SCC), which has been described as a “high threshold”.

In the landmark Delgamuukw decision, the majority of the Supreme Court of Canada set out the test for proof of Aboriginal title as follows:

More recently, in the Tsilhqot’in Nation decision, the Supreme Court of Canada reconfirmed that the concepts of sufficient occupancy, continuity and exclusivity provide useful lenses through which to view the question of Aboriginal title. However, the Supreme Court of Canada also stressed that care must be taken not to lose or distort the Indigenous perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Indigenous interests into equivalent modern legal rights. According to the Court, sufficiency, continuity and exclusivity are not ends in themselves but inquiries that shed light on whether Aboriginal title is established (Tsilhqot’in Nation, SCC).

In terms of the relevant time for proof of Aboriginal title, the date of the assertion of sovereignty will vary depending on the region in question.  The Royal Proclamation of 1763 cannot be relied upon as the date of sovereignty for all lands within Canada, given that French and British sovereignty may post-date this instrument in certain regions. For example, in Delgamuukw the majority of the Supreme Court of Canada accepted that British sovereignty over British Columbia was not conclusively established until the Oregon Boundary Treaty of 1846 (Delgamuukw, SCC; Tsilhqot’in Nation, SCC). Earlier dates of sovereignty have been used for other areas of Canada, including for instance New Brunswick and Nova Scotia (Marshall; Bernard, SCC).

As concerns the elements of the test itself, the Supreme Court of Canada has recognized that at common law, physical occupation is proof of possession at law and that physical occupation may be established in a variety of ways, ranging from the construction of dwellings; cultivation and enclosure of fields; and regular use of tracts of land for hunting, fishing, or resource exploitation (Tsilhqot’in Nation, SCC). The Indigenous perspective may be demonstrated through evidence of collective laws, customs, traditions, and practices of the particular Indigenous group (Tsilhqot’in Nation, SCC). This perspective also takes into account such aspects as the Indigenous group’s size, manner of life, material resources, and the character of the lands claimed (Delgamuukw, SCC; Tsilhqot’in Nation, SCC). For example, in Tsilhqot’in Nation, the Supreme Court of Canada consideredwhether a small group of semi-nomadic people could establish proof of Aboriginal title over a large geographic area. The Court took into consideration the low carrying capacity of the lands coupled with the group’s semi-nomadic way of life to conclude that a demonstrated pattern of seasonal occupation is sufficient to ground title had been established.

As the second element required to establish title, continuity does not require that the Indigenous group provide evidence of an unbroken chain of possession, but rather, the claimant must establish that present occupation is rooted in pre-sovereignty times.

The element of exclusivity can be demonstrated by proof that the Indigenous group was the sole occupant of the lands in question. However, where other Indigenous groups were historically present, the group claiming title can prove exclusivity by demonstrating the intent or capacity to retain exclusive control, for example when others sought and received permission from the group asserting title to traverse and/or use portions of the lands (Delgamuukw, SCC). The types of evidence that may demonstrate the intent or capacity to retain exclusive control include an Indigenous group’s traditional laws governing land use; permission to access lands granted or refused by the group; or agreements or treaties made between groups in relation to land access (Tsilhqot’in Nation, SCC).

The Supreme Court of Canada has recognised that in some areas, Indigenous groups may have shared lands and resources or had overlapping title to certain areas. Accordingly, the court has noted that joint title held between two or more Indigenous collectives could arise from shared exclusivity (Delgamuukw, SCC).