MAKING SENSE OF ABORIGINAL AND TREATY RIGHTS

Abstract

This paper proposes a basic framework for understanding the decisions of the Supreme Court of Canada relating to aboriginal and treaty rights. It argues that the foundations of these rights lie in the common law doctrine of aboriginal rights, which originated in ancient custom generated by historical relations between the Crown and indigenous peoples, as informed by basic principles of justice. This sui genesis doctrine is part of the common law of Canada and operates uniformly across the country; it also provides the context for interpreting section 35(1) of the Constitution Act, 1982. The doctrine of aboriginal rights has a number of distinct branches. One branch governs treaties between indigenous peoples and the Crown, and determines their basic status, existence, interpretation and effects. Another branch deals with the various types of aboriginal rights, including aboriginal title and the right of self-government. Here, the doctrine distinguishes between generic and specific rights, exclusive and non-exclusive rights, and depletable and non-depletable rights. Still other branches of the doctrine articulate the principles governing the operation of aboriginal customary law and the fiduciary role of the Crown.