Indigenous Rights, Consultation and Consent

Aboriginal Rights in Canadian Law

The following discussion provides an extremely brief overview of Aboriginal rights and title in Canada. Readers interested in more information are encouraged to refer to the many excellent resources available.16

In Canada, Aboriginal rights are legally defined as sui generis communal rights that may be exercised by virtue of an individual’s ancestrally-based membership in a present community.17 Aboriginal rights are derived from Aboriginal peoples’ laws, governance structures, cultural practices, customs and traditions, and may include:18

  • rights to land (Aboriginal title);19
  • rights to hunt and fish;20
  • rights to practice anything that was integral to the culture prior to European contact which may include governance rights, rights to harvest and manage trees, plants and medicines, etc.;21
  • special linguistic, cultural and religious rights;
  • rights held under customary systems of Aboriginal law; and
  • rights of self-government.

In BC, First Nations rights are sometimes enshrined in historic Crown-First Nations treaties and modern land claim agreements. The only historic treaties signed in BC are the early Douglas treaties on Vancouver Island, and Treaty 8, which extends from Alberta and the Yukon into parts of north-eastern BC. More recently, modern treaties (“final agreements”) have been signed by the Nisga’a First Nation,22 the Tsawwassen First Nation,23 Maa-nulth First Nations,24 Yale First Nation,25 and Tla’amin Nation26. With the exception of the Tsawwassen First Nation, these modern treaties grant the First Nations ownership of all minerals and precious metals on their settlement lands. As such, these First Nations are able to manage resource-extraction activities on their lands and collect fees, rents, and royalties (although some tenures that pre-exist the Treaties may continue to be managed under provincial law with the royalties going to the First Nation).27

To establish the existence of Aboriginal rights in non-treaty areas (land that has not been ceded or surrendered by treaty), Fist Nations must satisfy a complex legal test. This requires proving that the activity in question was integral to a distinctive culture prior to European contact28 and that the activity is “essentially the same” as those activities that were carried out prior to contact with Europeans, although aboriginal rights are not frozen in time and practices and activities may evolve.29

A modified common law test must be met to establish Aboriginal title, which is a specific type of Aboriginal right that grants a communal right to the land itself. As stated by the Supreme Court of Canada, “the common law theory underlying recognition of aboriginal title holds that an aboriginal group which occupied land at the time of European sovereignty and never ceded or otherwise lost its right to that land, continues to enjoy title to it”.30 In BC, this date is presumed to be 1846. The test set out by the Supreme Court of Canada is: 31

(i) the land must have been occupied prior to sovereignty,

(ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and

(iii) at sovereignty, that occupation must have been exclusive.

To date, no First Nation in Canada has succeeded in establishing Aboriginal title under this common law test. In a lawsuit against the BC government, the Tsilqhot’in Nation achieved recognition of potential title to a significant area of their territory, but the court did not issue a declaration of title due to a technical issue. At the time of writing, the Tsilqhot’in Nation’s case is under appeal to the Supreme Court of Canada.


Canada’s common law test for recognizing and protecting Aboriginal rights is extremely complex, costly  and difficult to meet. To bring a case in Canada seeking recognition of Aboriginal title can cost a First Nation tens of millions of dollars and take decades to conclude. Often, the Crown will raise dozens of technical issues and create further significant delays, which result in further costs to the First Nation claiming the right. In contrast, other jurisdictions have enacted legal provisions that explicitly recognize and protect several types of Indigenous rights.32

Recommended Solutions

The following sections showcase other jurisdictions that have explicit legislative or constitutional provisions to recognize and protect various types of Aboriginal rights, including title. (Note that the following discussion focuses exclusively on legislation, not jurisprudence. Individuals interested in case law may wish to visit the Indigenous Rights Case Law Database.33)

Recognize and affirm First Nations’ rights in mining legislation

[Tags: Indigenous Rights; Mining Law]

Mining legislation in BC does not explicitly recognize Indigenous peoples’ rights. In contrast, Ontario’s Mining Act explicitly states that its purpose is to “encourage prospecting, staking and exploration for the development of mineral resources, in a manner consistent with the recognition and affirmation of existing Indigenous and treaty rights in section 35 of the Constitution Act, 1982”.34 The recognition of Indigenous peoples’ rights is even more clearly articulated in the Philippines, where Indigenous peoples are granted priority rights over harvesting, extraction, development or exploitation of any natural resources within their ancestral domains.35


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