Aboriginal rights and aboriginal title
What are aboriginal rights and aboriginal title?
The Courts have ruled that an aboriginal nation that was present on a territory at the time of the arrival of the Europeans and that has continued to frequent the territory since then, has distinct rights on this territory, known as aboriginal rights. An aboriginal right is a right ensuing from a custom, a practice or a tradition that characterizes the culture of an aboriginal group.
Aboriginal title is a type of aboriginal right that is linked to an exclusive occupation of a territory and that includes the right to use or occupy lands exclusively.
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Why are the Innu claiming aboriginal rights?
Through the James Bay and Northern Québec Agreement and the Northeastern Québec Agreement, the governments have agreed to treaties with the Crees, the Inuit and the Naskapi making it possible to settle their claims relating to their aboriginal rights.
In other regions, where the rights of the aboriginal people have not been defined by treaty, the claims lead to negotiations or, in the absence thereof, to a solution imposed by the Courts.
On the Côte-Nord and in the Saguenay–Lac-Saint-Jean, the Québec and Innu nations have inhabited the same territory for 400 years without any treaty having been signed. This situation does not promote the establishment of harmonious relations between the two communities.
The Innu feel that the notion of aboriginal rights, as defined by the Supreme Court of Canada, applies to their situation. That is why they are claiming aboriginal rights. Negotiations on this subject between the governments of Québec and Canada and the Innu have been under way since 1980, taking into account numerous judgments and events.
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Will aboriginal rights be in addition to the rights that the aboriginal people already have as citizens of Québec?
The current situation of the aboriginal people differs from that of Quebecers. Indeed, the Canadian Constitution and the Indian Act of the Federal Government have confirmed and granted the aboriginal people a distinct legal status.
Recognition of aboriginal rights will allow the aboriginal people to go beyond the framework of this law and to acquire a certain autonomy at the political and financial levels.
Aboriginal rights are not additional rights that would make the aboriginal people privileged citizens. Instead, these rights offer the aboriginal people the possibility of administering their own affairs.
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What historical evidence is there in support of Innu claims?
The Innu carried out numerous anthropological and historical studies in the early 1980s. These studies were submitted to the federal government which, on this basis and in its capacity as fiduciary, accepted the territorial claim of the Innu. That is how the territorial negotiations began.
Moreover, there are several studies that have been published on the occupation of Québec’s territory. Authors such as Alain Beaulieu, Daniel Chevrier, Denys Delâge, Léo-Paul Desrosiers, Jacques Frenette, Camil Girard, Jacques Lacoursière, Charles Martijn, Raynald Parent, Maurice Ratelle, Jean-Pierre Sawaya and Sylvie Vincent, among others, have helped enrich our general knowledge on this subject.
Uncontested historical and legal proof can only be produced before the Supreme Court of Canada.
The approach adopted by Québec since 1980 is to try to come to an amicable agreement by way of negotiation.
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Are the aboriginal people the only citizens that can claim separate rights?
The aboriginal people are not the only citizens to have separate rights. The Canadian Constitution and various pieces of legislation grant special rights to several groups, for example:
- the right, in Québec and in Ontario, to denominational schools for Catholic and Protestants (Section 93 of the Constitution Act, 1867), a right that ceased to apply in Québec in 1997;
- the use of French and English guaranteed within the Federal Government and within the Government of Québec, but not in the other provinces (Section 133 of the Constitution Act, 1867);
- the right for Québec to have three judges on the Supreme Court of Canada, a right stipulated in the Supreme Court Act.
Other sections of major laws also apply in the following cases:
- Section 51 of the Constitution Act, 1867 stipulates that Québec is entitled to at least 75 members of the House of Commons;
- Section 15 (2) of the Canadian Charter stipulates that the effect of the right to equality shall not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin;
- Section 16 of the Canadian Charter stipulates that French and English are the official languages of Canada and New Brunswick;
- Section 23 of the Canadian Charter (right for Canadian citizens whose first language is that of the minority of the province in which they reside to have their children receive instruction in that language) can only enter into force in Québec following the authorization of the National Assembly or of the Government of Québec;
- Section 27 of the Canadian Charter stipulates that the interpretation of the Charter shall be in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians; Section 43 of the Québec Charter stipulates that individuals belonging to ethnic minorities have a right to maintain and develop their own cultural interests with the other members of their group;
- Under section 33 of the Canadian Charter, collective rights can prevail over individual rights (notwithstanding clause).
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Do the aboriginal people of other provinces or other countries have separate rights?
The recognition, in Canada, of separate rights for the aboriginal people is a juridical fact. It ensues from the first treaties reached with European powers, the Royal Proclamation, treaties involving the cession of land (Ontario and Prairies in particular), modern treaties (e.g. in James Bay, in Nunavutet in British Columbia), and Supreme Court rulings (including Calder, in 1973).
In aboriginal matters, other countries, such as the United States, Australia and New Zealand, recognize the special status of the first inhabitants.
The United Nations and the Organization of American States are currently examining a draft declaration on the rights of indigenous peoples. The International Labour Organization has also adopted two conventions, one in 1957 and the second in 1989, on indigenous and tribal peoples.
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