Cecily Zamora
The rights of First Nations peoples have been infringed upon since the arrival of European settlers in what is now Canada, and have been subject to colonial mentalities and the Doctrine of Discovery. However, the Canadian government has committed to implementing the UN Declaration on the Rights of Indigenous Peoples, which includes recognizing the collective rights of First Nations peoples. These rights include the right to self-determination and self-government, the right to practice their culture and customs, and the right to live in freedom, peace, and security. While the subject of collective rights for First Nations is complex, with varying interests between individuals and communities, the recognition and promotion of these rights are essential for the existence, well-being, and development of First Nations peoples.
| Characteristics | Values |
|---|---|
| Rights to the land | First Nations share a common heritage, history, culture, language, land base, and traditions |
| Rights to subsistence resources and activities | First Nations have a common identity as well as individual identities |
| Right to self-determination and self-government | First Nations hold Aboriginal and treaty rights individually and collectively |
| Right to practice one's own culture and customs, including language and religion | First Nations hold a nation-to-nation relationship with the Crown, and their rights fall within the domain of international law |
| Right to live in freedom, peace, and security as distinct peoples | First Nations have the right to access and prompt decision-making through just and fair procedures for conflict resolution with states or other parties |
| Right to not be subjected to forced assimilation or destruction of their culture | First Nations have the right to be free from discrimination in the exercise of their rights |
| Right to autonomy or self-government in internal and local affairs | First Nations have inherent rights to their lands, territories, and resources |
| Right to be treated with respect and as full partners in Confederation | First Nations have the right to the full enjoyment of all human rights and fundamental freedoms recognized in the UN Charter, the Universal Declaration of Human Rights, and international human rights law |
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What You'll Learn
Aboriginal rights are collective rights
The recognition of Aboriginal rights in law is a complex issue. In Canada, Aboriginal rights were formally recognized and enshrined in Section 35 of the Canadian Constitution in 1982. This came after lobbying from Aboriginal leaders and organizations who sought to protect these rights. However, the Constitution does not provide a specific definition of Aboriginal rights, instead leaving it to the courts to define these rights on a case-by-case basis.
Section 25 of the Charter of Rights and Freedoms further ensures that Charter rights cannot "abrogate or derogate" from Aboriginal rights. This section has a "'shielding'" effect, prioritizing Aboriginal rights when there is an irreconcilable conflict between collective and individual Charter rights. The interpretation and application of Section 25 must consider the distinctive philosophies, traditions, and cultural practices of Aboriginal peoples.
The distinction between specific and generic Aboriginal rights is important. Generic rights are held by all Aboriginal peoples across Canada and include the right to practice culture and customs, often referred to as "cultural integrity." On the other hand, specific rights are held by individual Aboriginal groups and may be recognized in treaties or defined by court cases.
The subject of collective rights for First Nations is complex, and there may be tensions between the interests of individuals and the collective. While Aboriginal rights are collective in nature, certain rights may be exercised by individual members of a First Nation. The understanding of Aboriginal rights and their relationship with the Crown is a topic of ongoing debate and discussion.
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Rights to the land
Canada is built on the land of First Nations, who have advocated for generations for equitable resolutions to land jurisdiction issues. The Indian Act of 1876 officially prohibited First Nations people from owning land, eventually allowing companies to extract resources from reserve land with little to no compensation.
The Assembly of First Nations (AFN) supports First Nations in negotiations over land claims and in seeking new federal laws that recognize their inherent land rights. The AFN's Land Claims Policy Sector assists First Nations in these negotiations and in securing new federal laws that recognize their inherent land rights.
In 2020, the First Nations-in-Assembly passed AFN Resolution 09/2020, calling on the Government of Canada to develop a fully independent specific claims process consistent with the United Nations Declaration on the Rights of Indigenous Peoples. This resolution emphasizes the importance of recognizing First Nations' laws in adjudication, dispute resolution, and negotiation.
The Comprehensive Land Claims Policy (CLCP) outlines the Government of Canada's approach to negotiating and settling First Nations land claims, often referred to as Modern Treaties. However, the CLCP has been criticized for falling short of Canadian and international law and not recognizing First Nations land rights. First Nations have advocated for its repeal and replacement with approaches consistent with the UN Declaration and their full recognition of rights.
The United Nations Declaration on the Rights of Indigenous Peoples Act recognizes the collective rights of indigenous peoples, including the right to live in freedom, peace, and security as distinct peoples. It also protects them from forced assimilation, cultural destruction, and dispossession of their lands, territories, or resources. This declaration is a step forward in recognizing and protecting the rights and freedoms of indigenous peoples, promoting their self-determination and autonomy in matters relating to their internal affairs and economic development.
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Right to self-determination and self-government
The right to self-determination and self-government for First Nations peoples is a complex and ongoing debate. Aboriginal rights, including the right to self-government, are collective rights that have been practised and enjoyed by Indigenous peoples since before European contact. These rights are inherent and arise from the continued use and occupation of their lands, as well as their distinct social, political, and legal systems.
During colonisation, these rights were infringed upon and largely unrecognised by colonial institutions. In Canada, for example, the Indian Act, passed in 1876, imposed a colonial governance system on First Nations communities, with authority resting in the hands of the federal Minister. However, the Canadian government now recognises the inherent right of self-government for Indigenous peoples, guaranteed under Section 35 of the Constitution Act, 1982. The government is working in partnership with Indigenous peoples to undo federally imposed systems and support them in rebuilding their nations and transitioning towards self-government.
Self-government negotiations are a key pathway to realising self-determination, allowing First Nations to make their own laws and policies, and have decision-making power over a broad range of matters, including governance, social and economic development, education, health, and land. While there is no one-size-fits-all approach, all agreements negotiated to date have some commonalities, including the requirement for approval from the Indigenous people through a community vote.
In Australia, the right to self-determination is particularly relevant to Aboriginal and Torres Strait Islander peoples. The Australian Government has supported the Declaration on the Rights of Indigenous Peoples and recognises the importance of consulting these communities when making decisions that will impact them. The establishment of the National Congress of Australia's First Peoples is an example of this commitment.
Overall, the right to self-determination and self-government for First Nations peoples is a fundamental principle of international law, as outlined in the United Nations Declaration on the Rights of Indigenous Peoples. While progress has been made, there is still work to be done to ensure these rights are fully realised and protected.
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Right to practice one's culture, customs, language, and religion
The right to practice one's culture, customs, language, and religion is a fundamental aspect of the collective rights of First Nations peoples. These rights are inherent and have been practiced by Aboriginal peoples since before European contact. While specific rights may vary among different Aboriginal groups, the right to cultural integrity is a generic right held by all Aboriginal peoples across Canada. This right is often referred to as the right to "cultural integrity" and is recognized in international law and the United Nations (UN) Charter.
The UN Declaration on the Rights of Indigenous Peoples, as proclaimed in the Declaration on the Rights of Indigenous Peoples Act, recognizes the collective rights of Indigenous peoples, which are essential for their existence, well-being, and integral development. This declaration affirms the right of Indigenous peoples to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions. It also emphasizes the right to be free from forced assimilation or destruction of their culture, which includes their customs, traditions, and language.
In Canada, the Government has acknowledged the importance of strong Indigenous cultural traditions and customs, including languages, in rebuilding Indigenous nations. The Royal Commission on Aboriginal Peoples has recognized the existence of numerous historical nations within Canada, each with its own unique characteristics. The Government of Canada's recognition of the inherent rights of Indigenous peoples is grounded in Section 35 of the Constitution Act, 1982, which reflects articles 3 and 4 of the UN Declaration.
Additionally, the Government of Canada has committed to implementing the UN Declaration through the review of laws and policies, collaborative initiatives, and other actions. This commitment includes recognizing Indigenous self-government and laws as critical to the country's future and incorporating Indigenous perspectives and rights into all aspects of the relationship between the government and Indigenous peoples. By doing so, Canada takes an active role in enabling Indigenous rights and furthering the process of decolonization.
The right to practice one's culture, customs, language, and religion is a fundamental aspect of the collective rights of First Nations peoples. It is essential for their continued existence, well-being, and cultural integrity. Recognizing and upholding these rights is a critical step towards reconciliation and empowering Indigenous nations to rebuild and thrive while maintaining their unique identities.
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Recognition of inherent rights and sovereignty
The recognition of the inherent rights and sovereignty of First Nations peoples has been a complex and ongoing issue, with a history of infringement and denial by colonial institutions. The rights of First Nations peoples are collective in nature, arising from their continued use and occupation of certain areas, and encompassing a range of political, economic, and social rights.
Aboriginal rights are inherent and have existed since before European contact, with First Nations functioning as distinct societies. These rights include land rights, rights to resources and subsistence activities, self-determination, self-government, and the right to practice culture, customs, language, and religion. The specific rights may vary between different First Nations groups, as each has its own unique history, culture, and traditions.
The Government of Canada has recognized the ongoing presence and inherent rights of Indigenous peoples, as outlined in Section 35 of the Constitution Act, 1982, which also reflects Articles 3 and 4 of the UN Declaration on the Rights of Indigenous Peoples. This recognition is a defining feature of Canada, mandating the reconciliation of Indigenous prior existence with Crown sovereignty and the fulfillment of historic treaty relationships.
The UN Declaration on the Rights of Indigenous Peoples, adopted by the United Nations, recognizes the collective and individual rights necessary for the survival, dignity, and well-being of Indigenous peoples worldwide. It affirms the rights of Indigenous individuals and peoples to life, integrity, liberty, security, and freedom from discrimination. Additionally, it recognizes their rights to self-determination, autonomy, and the preservation of their culture.
The implementation of this UN Declaration requires transformative change in the Canadian government's relationship with Indigenous peoples, including a review of laws and policies. This process aims to incorporate Indigenous perspectives and rights, address the legacy of colonialism, and foster nation-to-nation, government-to-government, and Inuit-Crown relationships.
The recognition of inherent rights and sovereignty for First Nations peoples is an ongoing process, with efforts to balance the interests of individuals and the collective, and to reconcile Indigenous rights with existing legal and political frameworks.
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Frequently asked questions
First Nations peoples are a collective of people who share a common heritage, history, culture, language, land base, and traditions. They have collective rights which include rights to the land, rights to subsistence resources and activities, the right to self-determination and self-government, and the right to practice their own culture and customs, including language and religion.
The collective rights of First Nations peoples are recognised by the United Nations Declaration on the Rights of Indigenous Peoples, which recognises the collective and individual rights that are necessary for the survival, dignity, and well-being of Indigenous peoples worldwide. The Declaration is supported by the Government of Canada, which has committed to implementing it through the review of laws and policies, as well as other collaborative initiatives and actions.
The recognition of collective rights for First Nations peoples has been a complex and ongoing process. Historically, the arrival of European settlers in what is now Canada led to the infringement of many First Nations rights, with little to no recognition from colonial institutions. During periods of European colonisation and settlement, Aboriginal leaders took their concerns to international forums such as the United Nations (UN) to argue against the imposition of foreign laws and regulations onto existing Aboriginal legal systems. The Royal Commission on Aboriginal Peoples estimated that there are between 60 and 80 historical nations in Canada.
