Twenty Years of Charter Protection: The Status of Aboriginal Peoples Under the Canadian Charter of Rights and Freedoms

Abstract

On the 20th anniversary of the Canadian Charter of Rights and Freedoms, it is crucial to reflect upon the impact the Charter has had on Aboriginal peoples. The courts have, on a number of occasions, interpreted various Charter provisions with a view to the special needs and circumstances of First Nations. A survey of the litigation surrounding these provisions reveals those spheres of litigation in which certain arguments have been successful in advancing Aboriginal interests as well as those arguments that the courts have been, to date, unwilling to hear. Instances where the Charter has been invoked by non-Aboriginals to challenge distinct treatment and legal rights possessed by Aboriginal peoples have been unsuccessful thus far and the litigation would suggest that the courts will generally continue to uphold the laws, programs and services that benefit First Nations. The courts have also been reluctant to interfere with laws enacted by Indian Act bands. At the same time, the Charter is already having considerable impact upon the Indian Act itself. All of these recent developments must be viewed within the context of the present position of Aboriginal peoples in Canada, a position that consistently reflects a standard of living below the Canadian average together with an Aboriginal population facing substantial growth. Within this greater context and in light of the trends apparent in recent Charter litigation, it is not only increasingly important to be familiar with those rights and freedoms guaranteed within the Charter, but also to comprehend how the Charter is being approached by Aboriginal individuals and groups, how the courts have undertaken to protect and enhance the rights of First Nations, and how the Charter can and will be used in the future.