What are Aboriginal Rights?

Abstract

Aboriginal rights in Canada are often viewed as specific rights - rights that are grounded in the specific practices and customs of particular aboriginal peoples and that differ from people to people. This article argues that these specific rights are in fact concrete instantiations of a panoply of generic aboriginal rights that are presumptively held by all aboriginal groups under Canadian common law. They include the right to conclude treaties, the right to customary law, the right to honourable treatment by the Crown, the right to an ancestral territory, the right of cultural integrity, and the right of self-government. These basic rights have a uniform character, which does not change from group to group. Specific rights, by contrast, arise under the auspices of generic rights and assume different forms in different aboriginal groups, depending on the particular circumstances of each group. Ranged between generic rights and specific rights are rights of intermediate generality, which relate to particular subject-matters such as sustenance, spirituality and language. The article suggests that this scheme provides a simple and practical way of understanding the otherwise bewildering array of aboriginal rights recognized in section 35(1) of the Constitution Act, 1982.