UNDERSTANDING ABORIGINAL RIGHTS

Abstract

The entrenchment of aboriginal rights in the Constitution Act, 1982 and the importance of aboriginal claims now reaching the courts highlight the need to understand these long-ignored rights. This article sets out a general theory of the subject, drawing on the leading cases and the complex history of relations between native peoples and the Crown. Aboriginal rights are based on a set of basic common law principles that operate uniformly across Canada, except where modified by treaty or legislation. Under those principles, native peoples presumptively hold full rights to lands in their possession, and retain their accustomed laws and political institutions, including a measure of internal autonomy. The Crown holds, a general fiduciary obligation to protect aboriginal peoples and their lands. Aboriginal rights have long enjoyed some constitutional protection under the Royal Proclamation of 1763 and the Constitution Act, 1867. The recent entrenchment of these rights completes the process.