Rights of Indigenous People in Canada: Aboriginal Rights
Introduction
Canada is a country known across the globe for its kindness, politeness, and general acceptance of all ethnicities. However, there is a quite discrepancy between the indigenous and the non-indigenous population in Canada. The discrimination of the aboriginal population can be attributed to the imperialistic policies of Canada, for example, the Indian Act which has disadvantaged most of the indigenous population. Just like any other person, the indigenous people have rights. Nonetheless, there is a difficulty in generalization with regards to the definition associated with indigenous rights following the existing diversity among the Metis, First Nation, and the Inuit population in Canada. Essentially, the rights of the indigenous people are intrinsic and collective flowing from both the original land occupation which happens to be Canada and Social orders established prior to when Europeans arrived to North America. Therefore, it can be articulated that indigenous rights relate to freedom rights accomplished through self-determination concerning self-governance, resources, land, and related culture.
The difficulty in ascertaining the definition attributable to indigenous rights relates to the fact that diversity exists among this indigenous population. Consequently, some of the individuals belonging to the First Nations tend to enjoy certain benefits concerning annual cash payments following the various treaties they have signed with the federal government. Conversely, the privileges do not extend to non-treaty nations. The same applies to the indigenous nations that emerged victorious in court battles concerning lands and resources. As a result, they enjoy dominance over the disputed land and population in comparison to the rest of the indigenous people. However, the general rights applicable to the indigenous population is as discussed below;
First and foremost, the indigenous population is entitled to the Aboriginal title which infers to the intrinsic Aboriginal rights precisely to land or rather a territory. According to the Canadian legal system, the Aboriginal title relates to a distinct collective right with regard to the jurisdiction or the right of usage over ancestral territories of a group. As a result, the right does not emanate from an external source but rather results following the individual occupation of the indigenous population and the consequential relationship the aboriginals have with their ancestral territories. This also integrates their political, social, and legal systems and structures. Following this, there is a disparity and separation in the rights entitled to the non-indigenous population in Canada as outlined by the common law. According to the Supreme Court, for Aboriginal title to be granted, there must be exclusive prove of occupation to the territory.
Nevertheless, the court has been unable to resolve all the issues pertaining to Aboriginal title. This inability as been prompted by the various serious disputes where the prevailing occupation happens to be non-exclusively aboriginal population and involves a situation where the resource organization desire to continue or rather expand their personal use of the land in question. As a result, this brings in the aspect concerning the duty to consult which is an integral component of the UN declaration concerning the rights of Aboriginal people. As a result, the Crown in the future is required to obtain consent from the Indigenous population or rather provide a valid justification necessitating the infringement of the rights of the Indigenous people.
Secondly, the indigenous population is entitled to the inherent right of self-government. This right is regarded as inherent in that it pre-existed in the governance and occupation of the indigenous land before the settlement of the European people. Nonetheless, the right of self-governance will not translate into sovereign independence among the Indigenous nation-states. Conversely, the implementation of indigenous self-governance is expected to enhance the engagement of the indigenous population in the Canadian federation. Also, this right ensures that the indigenous population with their respective governance is not isolated or rather separated from the rest of the Canadian community. Consequently, this right provides an opportunity to the political entities in that through the indigenous population, they are elevated in expressing their unique identities predominantly in the context of their Canadian citizenship. As a result, the indigenous population is not required to renunciate their identity in order to ensure the accomplishment of the objective. Accordingly, the indigenous population considers this right as a restoration of their prior rights and powers hence a reconciliation of the Crown's sovereignty and the pre-existence of the indigenous societies.
Thirdly, the Indigenous people are entitled to enter into treaties. In Canada, the treaties of the Indigenous population are recognized in the constitution as binding agreements between the Indigenous population and the Crown. Essentially, most of the treaties outline exchanges where the Aboriginal population reaches an agreement to share part of their interest concerning the in the ancestral land, and in exchange, they will receive several payments and related promises as is the case with the First Nation. Regarding an in-depth analysis, the indigenous people regard these agreements as sacred covenants existing between countries that develop a binding relationship with those who consider Canada as their homeland and even individuals whose family roots are traced back to other countries. Therefore, treaties are deemed to create both moral and constitutional-based alliances between Canada and the Indigenous population.
Moreover, the indigenous people are entitled to embrace their own culture and custom which include the aspect of religion and language. This right is at times known as the “cultural integrity” right. As a result, the Indigenous people in Canada can express their cultural heritage, and knowledge, and use their languages. Therefore, this right grants the indigenous population an opportunity to freely establish their cultural and social development, political status in the society as well as economic development.
Lastly, the Indigenous people are entitled to subsistence resources and activities. This right relates to their entitlement to harvest resources from their ancestral or rather traditional territories. This is founded on the principle of acknowledging that the Aboriginal lands and territories are predominantly reserved for the indigenous populations hence free to utilize it as their hunting grounds.
Conclusion
Despite that there is evident progress regarding the enforceability of the Indigenous rights in Canada, there is hesitancy in the side of the Canadian government hence justifying the fact that there is no single Indigenous right that is regarded as absolute within the Canadian law. Essentially, the Canadian government has not fully acknowledged the Indigenous self-government right perhaps due to the fear associated with uncertainty regarding what impact and meaning it will have on Canada as a country. Also, regarding the fishing rights, it can be argued that there is no exclusivity following the fact that only the Aboriginal population can practice them but they are not protected from the regulations enforced by other governments. Moreover, the Aboriginal title may have been successful in providing the indigenous population with exclusive rights with regard to the use and occupation of the land. Nonetheless, there is the possibility of infringement by the Canadian government following some developments such as power generation, environmental protection programs, and economic development. Therefore, it can be deduced that the progress in the recognition of the rights of the Indigenous people s quite remarkable but there is a long journey awaiting in the attainment of full acknowledgment of these rights. As a result, the existing gap between the Indigenous and the non-Indigenous population seems to persist.
References
- Alcantara, C., & Davidson, A. (2015). Negotiating aboriginal self-government agreements in Canada: An analysis of the Inuvialuit experience. Canadian Journal of Political Science/Revue Canadienne de science politique, 48(3), 553-575.
- Asch, M. (2014). On being here to stay: Treaties and Aboriginal rights in Canada. University of Toronto Press.
- Borrows, J. (2015). Aboriginal title and private property. In the Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference (Vol. 71, No. 1, p. 5).
- Nossal, K. R., Roussel, S., & Paquin, S. (2015). The politics of Canadian foreign policy. McGill-Queen's Press-MQUP.
