ABORIGINAL PEOPLES, INTERNATIONAL LAW AND THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Abstract

While international law grants no recognized status to aboriginal peoples, it does make provision for the recognition of special rights to minority groups, over and above those enjoyed by the rest of the population. Moreover, it has laid down the conditions to be looked for in determining whether a "community" exists which might claim recognition as a minority group. The author suggests that the Indians, Inuit and Métis would each constitute such a group. In examining the provisions in the Charter of Rights guaranteeing aboriginal rights, the author is of the opinion that these are of no more worth than any of the rights guaranteed, and that they can easily be overcome by use of both the "notwithstanding" clause and section 1. Rather than embodying aboriginal rights in the Constitution, the aboriginal people should be granted a status of their own, with rights spelled out in a completely separate piece of legislation which cannot be touched by the Charter or the Constitution. The author also suggests that it may be necessary to subject this special legislation to the jurisdiction of a court comprising aboriginal judges.