THE RIGHTS OF THE ABORIGINAL PEOPLES IN CANADA

Abstract

The provisions on aboriginal peoples in the Constitution Act, 1982, reflect the development of political and legal concerns in the period since the second World War. Canadian concern with aboriginal peoples has been in line with or ahead of similar developments in international law. Section 25 recognizes that the distinct group rights of aboriginal peoples cannot be subject to the egalitarian provisions of the Charter of Rights and Freedoms. Section 35 recognizes and affirms existing aboriginal and treaty rights, but does not substantively enhance those rights. It does prevent their non consensual limitation or extinguishment by other than a constitutional amendment. Section 37 provides for a special first ministers conference, recognizing that aboriginal questions were incompletely considered in the constitutional review process. A consent clause to amendments was omitted though there is some tradition of seeking aboriginal consent to changes which affect them. Any provision on aboriginal self-government was also omitted, though it has become a basic concern of aboriginal leaders in recent years.