JUNE 13, 2024

Critical Perspectives on the Development of Aboriginal Rights in Canada


The development of Aboriginal rights in Canada has been a complex and evolving journey, intricately linked with the country’s legislative and judicial history. From the early imposition of English common law, which aimed to override Indigenous legal traditions, to the more recent recognition of Aboriginal rights in the Canadian Constitution, this trajectory reflects both progress and persistent challenges. This article explores key legislative milestones and landmark court decisions that have shaped the understanding and implementation of Aboriginal rights in Canada. Central to this study is the examination of historical legislation such as the Royal Proclamation of 1763 and the Indian Act of 1876, both of which played crucial roles in defining and often restricting the rights of Indigenous peoples. The analysis extends to significant judicial rulings, including Calder v Attorney-General of British Columbia and Tsilhqot’in Nation v. British Columbia, which have progressively acknowledged Indigenous land claims and self-governance. By critically assessing these legislative and judicial developments, this article highlights the ongoing struggle for meaningful recognition and protection of Indigenous rights within the Canadian legal framework, emphasizing the gaps that remain and the need for continued advocacy and reform.

Evolution of Aboriginal Rights in Canadian Legislation

According to Farlie, as British settlers and authorities established their presence in Canada, they sought to impose English legal norms on Indigenous people, who had their own distinct legal and governance systems. The reception of English Law in a new territory was guided by three main rules, each dependent on how the territory was acquired. These rules were known as settlement, conquest or cession, and adoption. In the new territory of Canada, the settlement rule was mostly applied. Thus, it involved the colony’s adoption of English common law principles, statutes, and legal institutions. English law was considered the default legal system in Canada, and the Indigenous legal systems that were supposed to be absorbed were then marginalized and ignored.

Since the reception of English law negatively impacted Indigenous legal traditions for many years, there was genuine hope from the indigenous communities that the Crown would be fulfilling its initial promise.

Originally, the Royal Proclamation, 1763 required land purchases and acquisitions to be made through the Crown only, under the prerogative to prevent abuses and frauds in order to protect Indigenous people. As the proclamation did not provide a clear definition of Indigenous rights or specify how negotiations should occur, it was ultimately used to control Indigenous lands and assert British authority. 

Then, the first Indian Act, which came into force in 1876, was a pivotal piece of legislation in Canadian history, deeply impacting Indigenous rights. While it has been amended several times, the core provisions have perpetuated a legacy of paternalistic control and discrimination against Indigenous peoples in Canada. It set out a list of regulations to be followed by Indigenous people, such as residential schools and band governance. As per Farlie, this limited the authority of Indigenous leaders and communities and their control over lands and resources, among other indignations.  While some amendments have been made to address specific issues, such as Bill C-31, which revised Indian status to address the gender discrimination of the Act, there is still a disagreement or even a lack of political will to replace this law.

Subsequently, in 1969, prime Minister Pierre Trudeau and his Minister of Indian Affairs, Jean Chretien, introduced a policy paper known as White Paper, aiming to assimilate Indigenous peoples into mainstream Canadian society. It proposed the elimination of legal distinctions between Indigenous and non-Indigenous Canadians, including the removal of Indigenous treaty rights, the Indian Act, and the Department of Indian Affairs. However, the white paper faced robust opposition from Indigenous communities across Canada primarily because it failed to address numerous concerns expressed by Indigenous peoples during their pre-publication discussions with the government.

Finally, the enactment of section 35 of the Constitution Act of 1982 recognized existing aboriginal rights, including aboriginal title. This recognition had legal and constitutional implications, emphasizing the importance of respecting and upholding the rights and interests of Indigenous peoples in Canada. In addition, section 25 of the Charter stipulates that the guarantee of certain Charter rights must not be interpreted as abrogating or derogating from any Indigenous or treaty rights, or any other rights or freedoms pertaining to Indigenous peoples.       In summary, although most of these legislations confirm the disregard of Indigenous legal systems and rights since the reception of English Law, it took decades for Indigenous peoples to have their rights validated by the Canadian legal system, as highlighted in section 35 of the Constitution Act and the case of Tsilhqot’in Nation v. British Columbia, when the Supreme Court of Canada (SCC) confirmed Indigenous communities’ rights to control and benefit from their ancestral territories.

Evolution of Aboriginal Rights in Canadian Case Law

Initially, in 1973, the SCC recognized for the first time the existence of Aboriginal title as a legal concept in Calder. This decision marked a significant turning point in the evolution of Aboriginal rights in Canada, paving the way for future legal developments and negotiations regarding Indigenous land claims and self-governance.

In 1990, in R. v. Sparrow, the Supreme Court analyzed the relevance of section 35 of the Constitution Act, which recognizes and affirms the existing aboriginal and treaty rights of the Indigenous peoples of Canada. The court confirmed its importance and ensured that these rights could not be easily overridden by ordinary legislation by attesting that “[l]egislation that affects the exercise of aboriginal rights will nonetheless be valid, if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1).”

Moving to 1997, the principles established in Calder and Sparrow were applied in Delgamuukw v. British Columbia, where the SCC confirmed that aboriginal rights are “…truly sui generis, and demands a unique approach to the treatment of evidence which accords due weight to the perspective of aboriginal peoples.”

Thereafter, in 2004, in Haida Nation v. British Columbia (Minister of Forests), the Court affirmed that the Crown should act honourably when participating in land negotiations and explicitly stated that it “may require it to consult and, where indicated, accommodate Aboriginal interests.” Nonetheless, the accommodation should be done in a way that does not add pressure to the Canadian constitutional framework.

Ultimately, in 2014, the SCC unanimously granted the Tsilhqot’in Nation title to a significant portion of its traditional lands in British Columbia. In this landmark case, Aboriginal title was for the first time recognized and confirmed by the Court as a fact, as noted by David Rosenberg and Jack Woodward. One important aspect of the decision was that the extent of consultation and accommodation required by the Crown depends on the strength of the Aboriginal group’s claim and the potential impact on their interests. If the Crown fails to properly consult, the groups can seek legal remedies such as injunctions, damages, or a court order to ensure consultation and accommodation are performed. This ruling not only acknowledges Aboriginal title as a legal reality but also sets a precedent for future title claims.

Since the Tsilhqot’in Nation case, the SCC in 2020 held in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), that the special nature of Indigenous title as a collective right that benefits future generations means that it is different from civil law and common law conceptions of property and must be understood with reference to Indigenous perspectives.

Critical Gaps in Implementing Aboriginal Rights

In critically assessing the jurisprudence from Calder to Tsilhqot’in Nation, it is clear that while significant strides have been made in recognizing and affirming Indigenous rights and title in Canada, gaps remain in the practical implementation of these principles. Calder set a crucial legal precedent by acknowledging Aboriginal title as a concept, but subsequent cases like Sparrow and Delgamuukw introduced standards for justification and evidence that, though intended to protect Indigenous rights, often created challenges in practice. The Crown’s duty to consult and accommodate, emphasized in Haida Nation and reaffirmed in Tsilhqot’in Nation, reflects a theoretical commitment to honourable engagement. However, the vagueness surrounding the scope and depth of consultation has often led to inconsistent applications, leaving many Indigenous groups without the protection they need.

Moreover, the principle that accommodation should not disrupt the Canadian constitutional framework risks prioritizing state interests over Indigenous sovereignty. While Tsilhqot’in Nation was an important victory for recognizing Aboriginal title, the ongoing struggle (as seen in Mikisew Cree v Canada (Minister of Canadian Heritage), Hamlet of Clyde River v Petroleum Geo-Services, and Chippewas of the Thames First Nation v Enbridge Pipelines Inc) for meaningful consultation and equitable accommodation suggests that Canada still has a long way to go in reconciling Indigenous rights within its legal framework.


The imposition of English common law in Canada initially marginalized and disregarded the intricate legal systems and rights of Indigenous peoples, heavily influencing their governance and access to traditional lands. Over the years, significant legislative and judicial developments have gradually recognized and validated Indigenous legal systems and Aboriginal rights. Important cases like Tsilhqot’in Nation and legislative frameworks such as section 35 of the Constitutional Act, 1982, have been imperative in advancing these rights. Nevertheless, it remains crucial to continue ongoing efforts and consider potential legislative reforms to further improve this evolving landscape.

* Natalia O. Johnston is a lawyer licensed in Brazil, currently pursuing her LLM in Canadian Common Law at Osgoode Hall Law School. She is based in Vancouver and holds a graduate degree in Environment, Oil & Gas Law from Universidade Potiguar.

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